¶ 98. {dissenting). The majority holds that defendant WMA Securities, Inc. (WMAS) waived the right to jury trial on the issue of damages because of discovery violations leading to a court-imposed judgment by default. Majority op., ¶¶ 5, 81. It asserts that judgment by default under Wis. Stat. § 804.12(2)(a)3. triggers the application of Wis. Stat. *674§ 806.02, and that all procedures for determining damages under the latter statute are within the discretion of the circuit court, subject only to review for an erroneous exercise of discretion. See majority op., ¶¶ 30, 38, 39-45. Because the majority's decision diminishes the constitutional right of jury trial in civil cases and is grounded in a mistaken theory of waiver, I respectfully dissent.
I. INTRODUCTION
¶ 99. The issue presented is whether WMAS has the right to a jury trial on the issue of damages after the circuit court entered a judgment by default as a sanction for WMAS's discovery violations. WMAS has not challenged the judgment against it on the issue of liability, but it contends that the court may not deprive it of a jury determination as to damages. This court granted WMAS's petition for review because it raised an important question of constitutional law.
¶ 100. In Wisconsin, the right of jury trial in civil cases is provided by both the Wisconsin Constitution and the Wisconsin Statutes. The Wisconsin Constitution, Article I, Section 5, declares that:
The right of trial by jury shall remain inviolate, and shall extend to all cases at law without regard to the amount in controversy; but a jury trial may be waived by the parties in all cases in the manner prescribed by law. Provided, however, that the legislature may, from time to time, by statute provide that a valid verdict, in civil cases, may be based on the votes of a specified number of the jury, not less than five-sixths thereof.
Wisconsin Stat. § 805.01 reaffirms the right to jury trial, but requires that it be claimed:
(1) Right preserved. The right of trial by jury as *675declared in article I, section 5, of the constitution or as given by a statute and the right of trial by the court shall be preserved to the parties inviolate.
(2) Demand. Any party entitled to a trial by jury or by the court may demand a trial in the mode to which entitled at or before the scheduling conference or pretrial conference, whichever is held first. The demand may be made either in writing or orally on the record.
¶ 101. The right of jury trial in a civil case can be waived. Wisconsin Stat. § 805.01(3) implements the waiver language in the constitution by setting out "in the manner prescribed by law" the circumstances constituting waiver. Wis. Const, art. I, § 5. Wisconsin Stat. § 805.01(3) states:
(3) Waiver. The failure of a party to demand in accordance with sub. (2) a trial in the mode to which entitled constitutes a waiver of trial in such mode. The right to trial by jury is also waived if the parties or their attorneys of record, by written stipulation filed with the court or by an oral stipulation made in open court and entered in the record, consent to trial by the court sitting without a jury. A demand for trial by jury made as herein provided may not be withdrawn without the consent of the parties.
¶ 102. Subsection (3) uses the term "waiver" in two different senses. First, technically, "waiver" is the intentional relinquishment or abandonment of a known right. See United States v. Olano, 507 U.S. 725, 733 (1993); Johnson v. Zerbst, 304 U.S. 458, 464 (1938). A written stipulation filed with the court or an oral stipulation made in open court, consenting to trial by the court, constitute waivers in the traditional and technical sense of the term. By contrast, a party's *676failure to demand a jury trial is, strictly speaking, a "forfeiture," — that is, a failure to timely assert a right. Olano, 507 U.S. at 733; see also Freytag v. Comm'r, 501 U.S. 868, 894-95 n.2 (1991) (Scalia, J., concurring) (distinguishing between waiver and forfeiture); State v. Kelty, 2006 WI 101, ¶¶ 62-63, 294 Wis. 2d 62, 716 N.W.2d 886 (Abrahamson, C.J., concurring) (cautioning against using "waiver" and "forfeiture" interchangeably).
¶ 103. A slight variation on the kind of "waiver" described in Wis. Stat. § 805.01(3) is found in Wis. Stat. § 814.61(4), which provides that if a party fails to pay the jury fee within the time permitted to demand a jury trial, "no jury may be called in the action, and the action may be tried to the court without a jury." See State ex rel. Prentice v. County Ct. of Milwaukee County, 70 Wis. 2d 230, 239, 234 N.W.2d 283 (1975). This subsection creates a uniform rule supplementing the requirements for any party to demand a jury trial. It provides, in essence, that a demand for trial by jury in a civil case is not perfected or not complete if the jury fee is not paid.
¶ 104. These forms of "waiver" are not the only ways that a party can surrender the constitutional right of jury trial. Looking to the default judgment statute, a civil defendant gives up the right to a trial of any sort "if no issue of law or fact has been joined and if the time for joining issue has expired," Wis. Stat. § 806.02(1), or if "a defendant fails to appear in an action," Wis. Stat. § 806.02(3), or if a defendant who has appeared in an action "fails to appear at trial." Wis. Stat. § 806.02(5). These defaulting actions by a party may be characterized as either forfeiture or waiver, depending upon the party's state of mind.
*677¶ 105. In short, a party can surrender the right of civil jury trial by intentionally relinquishing the right or by failing to assert the right, both coming under the generic heading of "waiver."
¶ 106. When a circuit court takes away a party's right of jury trial, however, the court's action must be explained and defended on other grounds.
¶ 107. For instance, this court has determined that a circuit court may enter summary judgment against a party, notwithstanding the party's persistent demand for a jury trial, "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Wis. Stat. § 802.08(2); see Eden v. La Crosse Lutheran Hosp., 53 Wis. 2d 186, 192, 191 N.W.2d 715 (1971).
¶ 108. A summary judgment that deprives a party of a jury trial is clearly not grounded in principles of waiver or forfeiture. Summary judgment is grounded on the unrelated principle that a jury is unnecessary — in certain cases — if there are no genuine issues of material fact and only legal issues will decide the outcome. In these circumstances, this court's rules of civil procedure authorize circuit judges to deny a party the right of jury trial.1
¶ 109. The majority's holding in the present case provides additional authority for circuit judges to take *678away a party's right of jury trial. The majority relies on Wis. Stat. § 804.12(2)(a)3., which permits circuit courts to render judgment by default as a discovery sanction against a disobedient party. Majority op., ¶¶ 5, 81. This authority must be grounded in some principle other than waiver or forfeiture or the absence of disputed facts, for these principles are inapplicable. A circuit court's decision to impose a sanction that deprives a party of a constitutional right ought to require standards that are susceptible to meaningful review. The proposition that a party deprived of a constitutional right by sanction has intentionally relinquished that right is intellectually bankrupt because it eliminates the need for standards governing the judicially imposed deprivation. If a circuit court were to use Wis. Stat. § 804.12(2)(a) to impose significant costs on a defendant (for instance, all the plaintiffs attorney fees) instead of rendering a judgment by default, I hope this court would not try to explain the sanction in terms of "waiver."
¶ 110. When this court endorses a rule permitting judges to take away a party's constitutional right of jury trial, it must enunciate a clear and compelling rationale for that rule, plus standards for its application, so that the rule is not easily employed or terribly abused. This the majority opinion fails to do.
¶ 111. The majority opinion obfuscates Wis. Stat. § 805.01(3), the jury trial waiver statute. The reason for this obfuscation is obvious. Any traditional view of either waiver or forfeiture is inconsistent with the facts of this case. Section 805.01(3) does not provide for *679waiver here because WMAS has not (1) failed to timely demand a jury trial; or (2) stipulated to trial without a jury.
II. THE MAJORITY OPINION
¶ 112. Because the future of an important constitutional right is at stake, the majority opinion must be carefully scrutinized. The majority asserts that WMAS "waived its right of trial by jury in the manner set forth in Wis. Stat. §§ (Rule) 804.12(2) and 806.02." Majority op., ¶¶ 5, 81.
¶ 113. The majority explains that a party may waive a trial by jury on the issue of damages "in the manner prescribed by law." Majority op., ¶ 17. Thus, the question, in the majority's view, is whether the defendant waived its right of trial by jury in the manner prescribed by law, that is, "whether by failing to comply with the circuit court's discovery orders and by incurring ¿judgment by default as a sanction, the defendant has waived its state constitutional right of trial by jury in the manner prescribed by law." Id., ¶ 30.
¶ 114. There is no dispute that Wis. Stat. § 805.03 reads in part:
For failure of any... party to comply with the statutes governing procedure in civil actions or to obey any order of court, the court. . . may make such orders in regard to the failure as are just, including but not limited to orders authorized under s. 804.12(2)(a).
Wisconsin Stat. § 804.12(2)(a) reads in part:
(2) Failure to comply with order, (a) If a party ... fails to obey an order to provide or permit discovery .. . the court in which the action is pending may make such orders in regard to the failure as are just, and among others the following:
*6803. An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party.
¶ 115. The majority cites cases in which circuit courts have rendered a judgment by default against a disobedient party as a discovery sanction under Wis. Stat. § 804.12(2)(a). Majority op., ¶ 41 n.31; see Midwest Developers v. Goma Corp., 121 Wis. 2d 632, 634, 642-43, 649, 360 N.W.2d 554 (Ct. App. 1984); Kerans v. Manion Outdoors Co., Inc., 167 Wis. 2d 122, 130, 482 N.W.2d 110 (Ct. App. 1992); Smith v. Golde, 224 Wis. 2d 518, 525, 528, 592 N.W.2d 287 (Ct. App. 1999); see also Hudson Diesel, Inc. v. Kenall, 194 Wis. 2d 531, 535 N.W.2d 65 (Ct. App. 1995).
¶ 116. In several of these cases, the court of appeals moved immediately, without analysis, to apply Wis. Stat. § 806.02 — the default judgment statute — as though it were axiomatic that "judgment by default" under Wis. Stat. § 804.12(2)(a)3. is the same as "default judgment" under Wis. Stat. § 806.02. The majority eagerly repeats this procedure. The majority simply states: "Wisconsin Stat. § (Rule) 806.02 governs default judgments." Majority op., ¶ 32.
¶ 117. The majority ultimately concludes: "[T]he clear implication of the rule and the case law applying the rule is that by engaging in conduct that results in a default judgment the defendant has waived its right of trial by jury in the manner prescribed by Wis. Stat. § (Rule) 806.02." Majority op., ¶ 39 (emphasis added).
¶ 118. There are several problems with the majority's analysis.
*681A
¶ 119. The first problem with the majority's analysis is that it fails to acknowledge that the seminal case applying Wis. Stat. § 804.12(2)(a) to effect judgment by default does not utilize the doctrine of waiver. The Midwest Developers case relies on a completely different principle. It looked to Hauer v. Christon, 43 Wis. 2d 147, 168 N.W.2d 81 (1969), which explained that a trial court's inherent power to strike a defendant's pleading is grounded "upon the necessity of the court to maintain the orderly administration of justice and the dispatch of its business." Midwest Developers, 121 Wis. 2d at 643 (quoting Hauer, 43 Wis. 2d at 150-51).
¶ 120. The Midwest Developers court went on to explain that the circuit court's decision to render judgment by default was "discretionary" and that a court abuses its discretion if it misapplies or misinterprets the law. Midwest Developers, 121 Wis. 2d at 650.
¶ 121. In the Kerans case, the court stated:
The decision is discretionary with the trial court. We review for abuse of that discretion. A court properly exercises its discretion if it examines relevant facts, applies a proper standard of law and, using a demonstrated rational process, reaches a conclusion that a reasonable judge could reach.
Kerans, 167 Wis. 2d at 130 (citations omitted).
¶ 122. In Smith v. Golde the court restated the standard of review: "We review a trial court's decision to enter a default judgment under the erroneous exercise of discretion standard." 224 Wis. 2d at 525 (citation omitted). Then, it reasoned that to enter a judgment by default as a sanction, "the trial court must determine that the "noncomplying party's conduct is egregious or *682in bad faith and without a clear and justifiable excuse." Smith, 224 Wis. 2d at 526 (quoting Hudson Diesel, 194 Wis. 2d at 542).
¶ 123. These statements about judicial discretion to maintain the orderly administration of justice embody a starkly different rationale from the majority's theory of defendant "waiver." A court's discretionary decision to deny the right of jury trial as a sanction is substantially different from a defendant's intentional relinquishment of that right or failure to assert that right. The first situation focuses on decision-making by the court while the second situation focuses on decision-making by the defendant.
¶ 124. The majority's theory of waiver departs from black letter Wisconsin law. For instance, in Milas v. Labor Association of Wisconsin, Inc., 214 Wis. 2d 1, 571 N.W.2d 656 (1997), the court stated:
This court has defined waiver as the "voluntary and intentional relinquishment of a known right" and has stated that "intent to relinquish [the right] is an essential element of waiver." Von Uhl [v. Trempealeau County Mut. Ins. Co.,] 33 Wis. 2d [32,] 37, 146 N.W.2d 516 [1966], The waiver doctrine focuses on the intent of the party against whom waiver is asserted. It is not necessary, however, to prove that the party had an actual intent to waive. See Attoe v. State Farm Mut. Auto. Ins. Co., 36 Wis. 2d 539, 545, 153 N.W.2d 575 (1967). "[T]he intent to waive may be inferred as a matter of law from the conduct of the parties." Nelson v. Caddo-Texas Oil Lands Co., 176 Wis. 327, 329, 186 N.W. 155 (1922).
Milas, 214 Wis. 2d at 9-10 (emphasis added) (footnote omitted) (brackets in original).
¶ 125. The Milas court's definition and discussion are consistent with this court's prior explanations of the *683doctrine of waiver.2 The Milas court's definition is also consistent with the common understanding of what the term "waiver" means, based on definitions found in legal dictionaries.3
¶ 126. In Chevron Chemical Co. v. Deloitte & Touche, 176 Wis. 2d 935, 501 N.W.2d 15 (1993) (Chevron I), the circuit court entered judgment for the plaintiff, *684notwithstanding a jury verdict for the defendant. Id. at 944-45. The court did so as a sanction for attorney misconduct. Id. at 944. The court explained:
Sanctions for attorney misconduct both penalize the offender and deter future misconduct. National Hockey League v. Met[ropolitan] Hockey Club[, Inc.], 427 U.S. 639, 643 (1976); Johnson [v. Allis Chalmers Corp.], 162 Wis. 2d [261,] 282-83[, 470 N.W.2d 859 (1991)]. The authority to impose sanctions is essential if circuit courts are to enforce their orders and ensure prompt disposition of lawsuits.
Chevron I, 176 Wis. 2d at 946.
¶ 127. Although the Chevron I case involved a sanction imposed after a jury trial, not a sanction for discovery violations, the court did not try to rationalize its sanction as some sort of "waiver" by the defendant.
¶ 128. Here the majority adopts a waiver theory at odds with precedent so that judicial deprivation of the constitutional right of jury trial appears to mesh with the waiver language of the state constitution. Wis. Const, art. I, § 5. This theory neatly avoids the constitutional question, shifts the focus from the court's decision-making to the defendant's decision-making, and significantly alters review of circuit court action. It is not correct.
B
¶ 129. The second problem with the majority's analysis is that there is no formal or logical linkage between the phrase in Wis. Stat. § 804.12(2)(a)3., authorizing "judgment by default" against a disobedient party, and Wis. Stat. § 806.02, the default judgment statute. In Chevron Chemical Co. v. Deloitte & Touche, 207 Wis. 2d 43, 557 N.W.2d 775 (1997) (Chevron II), this *685court recognized that default as a sanction is "not a typical default judgment case." Id. at 48. The Chevron II court noted that "issues of fact and law were joined and the defendant appeared at trial." Id. Thus, the Chevron II court determined that the default sanction was "not governed by § 806.02." Id. (emphasis added).
¶ 130. The present case, involving another judicial sanction, also is not a typical default judgment case. The defendant did not forgo the right of trial by jury by failing to answer the complaint or failing to appear in court. The circuit court took away the right and entered judgment as a sanction. It would appear self-evident that the entry of judgment by default on these facts should be treated and reviewed differently from a default judgment entered on the basis of a defendant's failure to answer the complaint.
C
¶ 131. The third problem with the majority's analysis comes from a close examination of Wis. Stat. § 806.02. Careful examination reveals why the statute does not govern judgments by default in sanction cases.
1
¶ 132. Subsection (1) reads: "A default judgment may be rendered as provided [in sub. (1)] if no issue of law or fact has been joined and if the time for joining issue has expired." Wis. Stat. § 806.02(1). In a sanction case, a sanctioned defendant is very likely to have joined issue by filing an answer to the complaint. The circuit court's decision to strike an answer is materially different from a defendant's failure to file an answer. To utilize subsection (1), the court must disregard the historical fact that the defendant answered the complaint.
*6862
¶ 133. Subsection (2) provides: "After filing the complaint and proof of service of the summons on one or more of the defendants and an affidavit that the defendant is in default for failure to join issue, the plaintiff may move for judgment according to the demand of the complaint." Wis. Stat. § 806.02(2) (emphasis added). In this case, the plaintiff did not move for judgment with an affidavit averring that WMAS was in default for failure to join issue. On April 22, 2005, the plaintiff moved to strike WMAS's pleadings as a discovery sanction. This was not a § 806.02 motion. It was a Wis. Stat. § 804.12(2)(a)3. motion.
3
¶ 134. Subsection (2) also provides that: "If the amount of money sought was excluded from the demand for judgment, as required under s. 802.02(lm), the court shall require the plaintiff to specify the amount of money claimed and provide that information to the court and to the other parties prior to the court rendering judgment." Wis. Stat. §806.02(2) (emphasis added). That did not happen here. On November 4, 2005, the circuit court issued a memorandum and order striking the pleadings and granting default judgment against WMAS pursuant to § 806.02. On November 28, 2005, the court signed a formal order that said in part: "Default judgment is entered against WMAS in favor of Plaintiff." A hearing on damages was not held until February 27-28, 2006, nearly four months later.
¶ 135. Subsection (3), like subsection (2), appears to require proof "before entering a judgment against such defendant." Wis. Stat. § 806.02(3) (emphasis added).
*687¶ 136. In short, the circuit court may have acted correctly in entering judgment by default under Wis. Stat. § 804.12(2)(a)3., but it did not follow the provisions of Wis. Stat. § 806.02. If the majority insists upon the applicability of § 806.02, it cannot conclude that the circuit court correctly followed that statute.4
4
¶ 137. Subsection (2) further provides: "If proof of any fact is necessary for the court to give judgment, the court shall receive the proof." Wis. Stat. § 806.02(2) (emphasis added). Subsection (5) provides in part: "If proof of any fact is necessary for the court to render judgment, the court shall receive the proof." Wis. Stat. § 806.02(5) (emphasis added).
¶ 138. The Judicial Council Committee's Note to Wis. Stat. § 806.02 from 1977 reads in part:
Sub. (5) has been modified to allow a judge in a default judgment matter to receive rather than manda-torily hear the proof of any fact necessary for a court to render judgment. This change allows a judge the option of in-chamber consideration of affidavits presented by attorneys. Under the present language the time of the judge may he taken up in open court hearing proof presented by the attorney orally whereas proof submitted by the attorney in the form of affidavits may be just as competent and trustworthy.
Judicial Council Committee's Note, 1977, § 806.02, Stats, (emphasis added).
*688¶ 139. The Judicial Council Note from 1981 indicates that the identical change had been made to subsection (2). Judicial Council Note, 1981, § 806.02, Stats.
¶ 140. These proof by affidavit provisions are much easier to justify when a party has, in fact, defaulted, that is, when a party has consciously given up the right to a trial either by a jury or by the court. These provisions are very difficult to justify if the right of trial by jury has been taken away as a sanction, because the court's decision to impose a sanction would arguably give the court the right to skip a time-consuming hearing on damages altogether.
¶ 141. Taking points B and C together, there is no linkage between "judgment by default" under Wis. Stat. § 804.12(2) (a)3. and "default judgment" under Wis. Stat. § 806.02. A close examination of § 806.02 makes it clear that this statute does not govern "judgment by default" imposed as a sanction. Consequently, the majority's reliance upon Wisconsin precedent under § 806.02 and federal cases under Federal Rule of Civil Procedure 55 is not on point.5
D
¶ 142. The fourth problem with the majority's analysis is that it overlooks critical precedent circumscribing a court's right to strike pleadings as a sanction. *689This court has held that the trial court has "an inherent power to dismiss a complaint and also to strike an answer and grant a default judgment, but. . . the exercise of the power is limited by the requirement of due process of the fourteenth amendment of the United States Constitution." Hauer, 43 Wis. 2d at 154 (emphasis added). Denial of a party's demand for trial by jury at the same time judgment by default is granted underscores the need for sound discretion that satisfies the requirements of due process.
¶ 143. In Gipson Lumber Co. v. Schickling, 56 Wis. 2d 164, 201 N.W.2d 500 (1972), the court applied this due process principle to a discovery case:
While sec. 885.11(5), Stats.,[6] does not specifically refer to a refusal to produce documents under subpoena duces tecum, which seems to be the main ground upon which the trial court struck the answer,.... we consider the section to be broad enough to embrace the failure to obey such a subpoena used with a discovery examination. ...
The constitutionality of statutes similar to sec. 885.11(5), Stats., has been considered and upheld providing the court exercising the power remains within the bounds of due process of law. Three major cases have laid down guidelines.!7] These cases were re*690viewed in Hauer v. Christon, 43 Wis. 2d 147, 168 N.W.2d 81 [1969], and the teaching is that a judge may strike an answer for noncompliance within the bounds of due process when the evidence withheld relates to an essential element of the defense so as to warrant a presumption of lack of merit and the disobedience is not the result of an inability on the part of the defendant to perform.
Id. at 168-69 (emphasis added) (footnote omitted).
¶ 144. Both Hauer and Gipson predate this court's adoption of the Wisconsin Rules of Civil Procedure. However, the procedure rules include Wis. Stat. § 805.01(1), which reads: "Right preserved. The right of trial by jury as declared in Article I, Section 5, of the constitution or as given by a statute and the right of trial by the court shall he preserved to the parties inviolate." Wis. Stat. § 805.01(1) (emphasis added). This language is stronger than the language in Article I, Section 5. Moreover, the rules of civil procedure were adopted under Wis. Stat. § 751.12, which admonishes the court that its rules "shall not abridge ... or modify the substantive rights of any litigant." Thus, the rules of civil procedure cannot be held to diminish a party's rights to due process or trial by jury from what they were before the adoption of the civil procedure rules.
III. WISCONSIN PRECEDENT
¶ 145. Before attempting to articulate standards for circuit courts that impose sanctions that deprive a party of trial by jury, it may be useful to examine additional Wisconsin precedent.
¶ 146. The relevant portions of Article I, Section 5 have been part of the Wisconsin Constitution since *6911848. Our constitution has always provided that, "The right of trial by jury shall remain inviolate, and shall extend to all cases at law without regard to the amount in controversy; but a jury trial may be waived by the parties in all cases in the manner prescribed by law." Wis. Const, art. I, § 5. From the beginning, judges and legislators have wrestled with the question of how to waive the right of jury trial.
¶ 147. In Leonard v. Rogan, 20 Wis. 568 (1866), this court reviewed a dispute over a conveyance of real estate. One question was whether the defendant, Mrs. Rogan, was entitled to a trial by jury. Id. at 568-71. The court stated that "[i]n an action at law, the defendant is entitled to a trial by jury . .. unless she has waived it." Id. at 571. The court concluded that Mrs. Rogan had waived her right of jury trial because the record revealed that the action proceeded to trial before the judge alone, without objection. Id. "[I]n other words . . . the parties consented to that mode of trial." Id. (emphasis added). "If the defendant had demanded a trial by jury, as she might have done,.. . the question would have been very different." Id.
¶ 148. In another case, Home Insurance Co. v. Security Insurance Co., 23 Wis. 171 (1868), the court determined that it was too late for the defendant to object to a non-jury trial when it voluntarily waived the right to trial before a court and jury by stipulating in writing to trial before a referee. Id. at 175. The court noted that while the "legislature has not attempted to compel the parties to submit to a trial by referees in actions of this nature," id. at 174, the statute at issue provided that "all or any of the issues in this action, whether of fact or of law, or both, may be referred, upon the written consent of the parties." Id. at 174. The court explained that the parties "may waive their right under *692the constitution to have the [dispute] heard and determined by the courts and juries of the country." Id. The court held that it was not "incompetent" for the legislature to pass such laws, because the "validity of the transaction" depended "entirely on the will of the parties." Id.
¶ 149. In Wooster v. Weyh, 194 Wis. 85, 216 N.W. 134 (1927), the defendant claimed he was deprived of his right to trial by jury. Id. at 89. The court's response: "The right he had to such trial by jury was one that may be waived. It was clearly waived in this case by appellant proceeding to trial without in any manner calling the matter to the attention of the court or suggesting that a trial by jury on this issue was desired or demanded." Id. at 91-92 (citations omitted).
¶ 150. These cases supplement Wisconsin statutes of long standing that have explained how to waive a jury trial. For instance, Section 2862 of the Revised Statutes of 1878 stated:
Trial by jury may be waived by the several parties to an issue of fact in actions on contract, and with the assent of the court in other actions, in the following manner:
1. By failing to appear at the trial.
2. By written consent, in person or by attorney, filed with the clerk.
3. By oral consent in open court, entered in the minutes.
Wis. Stat. ch. 128, § 2862 (1878) (emphasis added). This text remained intact until January 1, 1936.
¶ 151. In 1935 the court revised then-existing Wis. Stat. § 270.32 (1935) to read: "Jury trial, how waived. Trial by jury may be waived by the several *693parties to an issue of fact by failing to appear at the trial; or by written consent filed with the clerk; or by consent in open court, entered in the minutes." S. Ct. Order, 217 Wis. v, ix (eff. Jan. 1, 1936). Apart from short-lived revisions in the mid-1940s, see Petition of Doar, 248 Wis. 113, 21 N.W.2d 1 (1945), this language stated the law until the court revised the rules of civil procedure in 1975, effective in 1976.
¶ 152. These statutes and cases demonstrate that waiver of the constitutional right of jury trial in civil cases has historically tracked traditional principles of waiver or forfeiture: affirmative or consensual action by one or more of the parties to surrender the right, or obvious failure by any party to assert the right. The steadfast maintenance of true waiver and forfeiture principles underlies the importance of the right being waived.
¶ 153. Wisconsin precedent honors the right of jury trial. In Schmidt v. Riess, 186 Wis. 574, 203 N.W. 362 (1925), this court observed:
Jurors are obtained from the various walks of life, with various degrees of knowledge and experience and with various interests, and, it must be assumed and admitted, with certain prejudices.. .. Unconscious prejudices exist with some in favor of the plaintiff, and with others in favor of the defendant. But after conceding all of these various elements that enter into the make-up of the personnel of the jurors and of the jury, it is largely designed that the average judgment of twelve men and women chosen from the citizenship of the community in which the parties reside will meet the requirements of justice, and that a verdict of the jury will be a true and just one.
Id. at 579-80.
*694¶ 154. Schmidt was a case in which the amount of damages was at issue. The court noted that "[t]he assessment of damages in a personal injury case presents a matter . . . which is peculiarly within the field of a jury to determine." Id. at 579. In DeKeyser v. Milwaukee Automobile Insurance Co., 236 Wis. 419, 431, 295 N.W. 755 (1941), this court made a stronger statement that "assessment of damages is solely a jury function." Again in Schultz v. Miller, 259 Wis. 316, 327, 48 N.W.2d 477 (1951), the court said "[t]he award of damages is within the province of the jury." Many additional cases could be cited.
¶ 155. In sum, "[t]he parties to an action are entitled to a jury trial on all issues of fact, including that of damages." Jennings v. Safeguard Ins. Co., 13 Wis. 2d 427, 431, 109 N.W.2d 90 (1961) (citing Wis. Const., art. I, § 5).
W. STANDARDS
¶ 156. The challenge in this case is to reconcile the judicial holdings that eloquently articulate the importance of trial by jury for deciding issues of fact, including the issue of damages, with the clear precedent that courts have authority to strike out pleadings or parts thereof and render a judgment by default when a defendant fails to comply with a court order.
¶ 157. In Johnson v. Allis Chalmers Corp., 162 Wis. 2d 261, 470 N.W.2d 859 (1991), this court discussed judicial authority, both statutory and inherent, to sanction parties "for failure to prosecute, failure to comply with procedural statutes or rules, and for failure to obey court orders." Id. at 273-74. Appropriate sanctions under Wis. Stat. § 804.12, the court said, include orders that designated facts be taken as established as well as *695orders that refuse the delinquent party the right to support or oppose designated claims or defenses, or that strike out pleadings or parts of pleadings, or that render judgment by default. Id. at 274.
¶ 158. The court, speaking through Justice William Bablitch, made these telling observations:
The latitude circuit courts in Wisconsin have to dismiss actions as a sanction is demonstrated by sec. 805.03, Stats., which permits dismissal whenever a party fails "to obey any order of the court." Although this language could be viewed as permitting dismissal for noncompliance with even trivial procedural orders, closer examination of the statute reveals that the court may only impose such orders "as are just." Furthermore, the Judicial Council Committee's Note... emphasizes that "[bjecause of the harshness of the sanction, a dismissal under this section should he considered appropriate only in cases of egregious conduct by a claimant." Our case law establishes that dismissal is improper, i.e. not "just," unless had faith or egregious conduct can be shown on the part of the noncomplying party.
Johnson, 162 Wis. 2d at 274-75 (citations omitted) (brackets in original). The court added that dismissal is a sanction that should rarely be granted and is appropriate only in cases of egregious conduct. Id. at 275 (citing Trispel v. Haefer, 89 Wis. 2d 725, 732, 279 N.W.2d 242 (1979)).
¶ 159. Striking a defendant's pleadings is roughly equivalent to dismissing a plaintiffs case and should be subject to similar standards. The following standards may be useful.
¶ 160. First, to strike a party's pleadings as a sanction, a circuit court must show that the noncomplying party's conduct was "egregious or in bad faith *696and without a clear and justifiable excuse." Smith, 224 Wis. 2d at 526 (internal quotation marks and citation omitted); see also Schultz v. Sykes, 2001 WI App 255, ¶ 9, 248 Wis. 2d 746, 638 N.W.2d 604 (citing cases).
¶ 161. Second, the decision to enter default judgment as a sanction "ought to be the last resort." Adolph Coors Co. v. Movement Against Racism and the Klan, 777 F.2d 1538, 1542 (11th Cir. 1985). Some federal courts consider it an "abuse of discretion" to impose judgment by default "if less draconian but equally effective sanctions" are available. Id. at 1543 (citing cases).
¶ 162. Third, the entry of judgment by default as a sanction must comply with due process. This consideration was discussed in Dubman v. North Shore Bank, 75 Wis. 2d 597, 249 N.W.2d 797 (1977):
This court has held that there is an inherent power to strike pleadings in a proper case... .
Defendant claims that the order ... imposes sanctions for contempt of court. If so, it is appealable. However, both Hauer v. Christon and Gipson Lumber Co. v. Schickling ... hold that the sanction of striking a pleading may not be exercised as a contempt penalty. The power can be exercised when evidence is withheld which relates to an essential element of the defense so as to warrant a presumption of fact that the defense has no merit. If imposed solely for failure to obey court orders, without evidence warranting a finding of no merit or bad faith, the sanction of striking a pleading... denies due process of law.
Dubman, 75 Wis. 2d at 600-01 (emphasis added) (citations omitted).8
*697¶ 163. Fourth, a circuit court must have discretion to narrow the focus of a damages hearing if the narrowing is "just" to the plaintiff. Striking a defendant's answer will normally settle the issue of the defendant's liability. In this case, however, when the circuit court struck the defendant's answer it made the defendant liable for: (1) vicarious liability for WMAS's employee's unlawful acts of conversion; (2) intentional misrepresentation; (3) strict responsibility misrepresentation; (4) negligent misrepresentation; (5) breach of fiduciary duty; (6) negligence; (7) breach of the implied duty of good faith in performance of a contract; and (8) breach of contract. See majority op., ¶ 9. Imposing liability on eight different causes of action complicated the task of determining damages. The claims appear to be inconsistent. A court should have the ability to narrow the issues for a damages hearing.
¶ 164. Fifth, striking a defendant's answer does not settle the amount of compensatory damages.9 The amount of compensatory damages remains an open question that requires proof of additional facts. The burden of proving the amount of damages remains with the party entitled to judgment.
¶ 165. In Apex Electronics Corp. v. Gee, 217 Wis. 2d 378, 380, 577 N.W.2d 23 (1998), this court stated that a circuit court entering a default judgment on a punitive damages claim must make inquiry beyond the complaint to determine the merits of the punitive damages claim and the amount of punitive damages, if *698any, to be awarded. The court's analysis is equally applicable to a plaintiff who seeks unliquidated compensatory damages. Id. at 387-88; see also Gaertner v. 880 Corp., 131 Wis. 2d 492, 505-06, 389 N.W.2d 59 (Ct. App. 1986).
¶ 166. Because judgment by default pursuant to Wis. Stat. § 804.12(2)(a)3. is not governed by Wis. Stat. § 806.02, Chevron II, 207 Wis. 2d at 48, this court cannot rely on pronouncements in § 806.02 cases that the court has the prerogative either to hold a hearing or inquiry on damages or to receive proof by affidavit. This court must decide how to determine damages when judgment by default is the result of judicial sanction, rather than waiver. It should not automatically conclude that a circuit court may disregard a defendant's demand for a jury trial to decide the issue of damages when that factual issue remains in dispute. Pointing to § 806.02 for judicial authority to deny trial by jury locks the court into judicial discretion to use only affidavits in determining damages.
¶ 167. The case law under Federal Rule of Civil Procedure 37(b) holds that a default may not be claimed as to damages "without a hearing unless the amount claimed is a liquidated sum or one capable of mathematical calculation." United Artists Corp. v. Freeman, 605 F.2d 854, 857 (5th Cir. 1979) (citing Flaks v. Koegel, 504 F.2d 702, 707 (2d Cir. 1974); Eisler v. Stritzler, 535 F.2d 148, 153-54 (1st Cir. 1976)). If there is no dispute as to the amount of damages either because of the amount lawfully pled in the complaint10 or because the amount is easily and objectively ascertainable, there *699should be no need for the defendant to continue to demand a jury and no need for a court to honor that demand.
¶ 168. However, if an evidentiary hearing is required to determine the amount of damages, a defendant's demand for a jury trial must be considered, just as a plaintiffs demand would have to be considered.
¶ 169. There are numerous reasons why the right of jury trial should be maintained in this situation:
a. The statutes nowhere authorize a circuit court to deny trial by jury per se. If they did, courts could sanction parties by denying the right of jury trial as a separate sanction, even when they did not strike out pleadings or enter judgment by default.
b. When a circuit court strikes a defendant's pleadings under Wis. Stat. § 804.12(2)(a)3., it imposes a drastic sanction. When the court thereafter denies a jury trial to determine the amount of damages, it is imposing an additional sanction on the defendant that requires additional justification if it is to comport with due process.11 The second sanction does not follow automatically from the first sanction.
c. The circuit court may not deny a jury trial to the plaintiff on. the issue of damages if the plaintiff wants a jury. A plaintiff does not automatically relinquish the right of jury trial by filing a motion to strike the defendant's pleadings as a sanction for discovery viola*700tions. See Morrison v. Rankin, 2007 WI App 186, ¶ 14, 305 Wis. 2d 240, 738 N.W.2d 588. There is something quite unfair, however, in honoring the request for a jury trial for one side but not the other.
d. The circuit court could not exclude the defendant from a jury trial if other defendants still had the right to claim a jury trial. See Wis. Stat. § 805.01(3). A sanctioned defendant may not be able to escape liability, but a sanctioned defendant ought to be able to establish the extent of its liability in relation to other defendants.
e. If punitive damages come into play, a defendant ought to be able to ask a jury to consider compensatory and punitive damage claims at the same time. See Trinity Evangelical Lutheran Church and School-Freistadt v. Tower Ins. Co., 2003 WI 46, 261 Wis. 2d 333, 661 N.W.2d 789.
¶ 170. The above conclusions are in accord with the law of Michigan and Florida. These states preserve a defendant's right of trial by jury on the issue of damages when a sanction of default is entered against that defendant.
¶ 171. In Wood v. Detroit Automobile Inter-Insurance Exchange, 321 N.W.2d 653 (Mich. 1982), the trial court entered default judgment against the defendant for failure to timely respond to interrogatories following two court orders requiring a response. Id. at 655-56. But on appeal, the Michigan Supreme Court rejected the notion that a defendant's default "cancels" a prior jury trial demand or constitutes the functional equivalent of waiver. Id. at 658-59.
¶ 172. The Wood court determined that Rule 520 of the Michigan General Court Rules of 1963 controlled entry of default judgment. Id. at 659. Specifically, the Wood court cited Rule 520, which preserved "a right of trial by jury to the parties when and as required by the *701constitution" in cases where (as here) the trial court must initiate further proceedings to determine damages on default. Id. at 659 n.12, 660 (quoting Rule 520.2(2) of the Michigan General Court Rules of 1963). The Wood court noted that the Michigan Constitution stated that "[t]he right of trial by jury shall remain, but shall be waived in all civil cases unless demanded by one of the parties in the manner prescribed by law." Wood, 321 N.W.2d at 660 (quoting Mich. Const., art. 1, § 14 (1963)).12 Since the defendant in Wood had not waived its right to jury trial, the court concluded that "the trial court... was obliged to accord defendant its properly preserved right to jury trial." Wood, 321 N.W.2d at 660 (footnote omitted).
¶ 173. The Michigan Supreme Court reaffirmed its Wood holding in Zaiter v. Riverfront Complex, Ltd., 620 N.W.2d 646, 651-53 (Mich. 2001). Zaiter involved a default entered against a defendant for failure to participate in discovery. Id. at 647. The Zaiter defendant requested a jury trial by relying on the plaintiffs demand for jury trial. Id.
¶ 174. The Zaiter court construed Michigan Court Rule 2.603(B)(3)(b) (1985), which replaced Michigan General Court Rule 520. Id. at 651-52. The Michigan court noted that the new rule included the phrase "to the extent required by the constitution," instead of "when and as required by the constitution," and determined that "[n]o substantive change was intended by that rephrasing." Id. at 652, 652 n.ll. Thus, the Zaiter court held that the defendant had the right to a jury trial on damages when default was entered against it as a sanction. Id. at 652.
*702¶ 175. Wood and Zaiter are not distinguishable from WMAS's case in any meaningful way. All three cases involve default entered by the trial court as a sanction against a defendant who requested a jury trial. In each case, after judgment was entered the trial court held a hearing to determine the amount of damages. In each case, the civil procedure rules and constitutional provisions at issue provided that the right to a jury trial was preserved unless waived. Thus, default, even as a sanction, does not constitute a waiver of the jury trial right. See Zaiter, 620 N.W.2d at 652 (citing Wood, 321 N.W.2d at 653).
¶ 176. Since the defendants in Wood and Zaiter invoked their right to a jury trial, and did not waive the right, they were entitled to a jury trial on the issue of damages. The same result should follow in the instant case. The majority's extraordinary response is that the court has given judges the right, in their discretion, to consider jury rights "waived." See majority op., ¶ 54.
¶ 177. The Florida Supreme Court addressed the issue of waiver of the right to a jury trial in the default judgment context in Curbelo v. Ullman, 571 So. 2d 443 (Fla. 1990). In Curbelo, a default judgment was entered against defendant Curbelo for failure to answer. Id. at 444. The trial court found damages against Curbelo in a non-jury trial, despite the plaintiff's earlier request for a jury. Id.
¶ 178. The Florida Supreme Court determined that "[w]hen a jury trial has been requested by the plaintiff, the defendant is still entitled to a jury trial on the issue of damages even though a default has been entered against the defendant for failure to answer or otherwise plead." Id. (citation omitted). The court cited a Florida rule of civil procedure for the proposition that "a demand for trial by jury may not be withdrawn *703'without the consent of the parties.'" Id. (quoting Fla. R. Civ. E 1.430(d)).13 The Florida Supreme Court held that "consent to waiver must be manifested by affirmative action such as a specific waiver in writing or by announcement in open court." Id. (internal quotation marks and citation omitted). Since there was no "affirmative manifestation," the Curbelo court found that Curbelo did not waive his right to a jury trial. Id.
¶ 179. Florida courts applying the Florida Rules of Civil Procedure have consistently adopted the logical position that waiver of the right to a jury trial requires some affirmative action or consent by the parties. See, e.g., Barth v. Fla. State Constructors Serv., Inc., 327 So. 2d 13, 15 (Fla. 1976); Baron Auctioneer, Inc. v. Ball, 674 So. 2d 212, 213-14 (Fla. Dist. Ct. App. 1996); Jayre, Inc. v. Wachovia Bank & Trust Co., N.A., 420 So. 2d 937, 938 (Fla. Dist. Ct. App. 1982). In Florida the right to trial by jury is preserved absent waiver, even when the opposing party, not the proponent of the right, has made the demand for trial by jury. Curbelo, 571 So. 2d at 444.
¶ 180. In sum, these decisions from Michigan and Florida indicate that the right to trial by jury, when properly demanded, is preserved despite the fact that default judgment was entered against one party as a sanction.
¶ 181. In Wisconsin, a "default judgment" entered under Wis. Stat. § 806.02 may be distinguished from a "judgment by default" entered as a sanction under Wis. Stat. § 804.12(2)(a)3., and courts acting under Wis. Stat. § 806.02 have broad discretion on how to proceed. *704In a real default, a defendant cedes that authority to the circuit court by its failure to assert its right to a trial. To apply the same sort of "waiver" principles to a judge's sanction, however, is to create a fiction that diminishes the valued constitutional right of jury trial.
¶ 182. For the reasons stated, I respectfully dissent.
¶ 183. I am authorized to state that Justice PATIENCE DRAKE ROGGENSACK joins this dissent.
My reservations about the use of summary judgment to deprive a party of trial by jury may be found in: Trinity Evangelical Lutheran Church and School-Freistadt v. Tower Ins. Co., 2003 WI 46, ¶¶ 71-86, 261 Wis. 2d 333, 661 N.W.2d 789 (Prosser, J., dissenting); Steven V. v. Kelley H., 2004 WI 47, ¶¶ 63-100, 271 Wis. 2d 1, 678 N.W.2d 856 (Prosser, J., dissent*678ing); and Walworth County DHSS v. Andrea L.O., 2008 WI 46, ¶¶ 59-68, 309 Wis. 2d 161, 749 N.W.2d 168 (Prosser, J., concurring).
See, e.g., Gonzalez v. City of Franklin, 137 Wis. 2d 109, 128-129, 403 N.W.2d 747 (1987) (defining waiver as a "voluntary and intentional relinquishment of a known right" and noting that "[i]ntent to waive is regarded as an essential element of waiver" (citations omitted)); Bank of Sun Prairie v. Opstein, 86 Wis. 2d 669, 681, 273 N.W.2d 279 (1979) ("Waiver is defined as a voluntary and intentional relinquishment of a known right. Intent to waive is an essential element of waiver." (citations omitted)); Employers Ins. of Wausau v. Sheedy, 42 Wis. 2d 161, 166, 166 N.W.2d 220 (1969) ("A waiver is the intentional relinquishment of a known right." (citation omitted)); Davies v. J.D. Wilson Co., 1 Wis. 2d 443, 466, 85 N.W.2d 459 (1957) (’Waiver is defined as voluntary and intentional relinquishment of a known right."); Swedish Am. Nat'l Bank of Minneapolis v. Koebernick, 136 Wis. 473, 479, 117 N.W. 1020 (1908) ("A waiver is the intentional relinquishment of a known right." (citation omitted)); Monroe Water Works Co. v. City of Monroe, 110 Wis. 11, 22, 85 N.W. 685 (1901) ("A waiver is the intentional relinquishment of a known right." (citation omitted)).
Black's Law Dictionary defines "waiver" as ”[t]he voluntary relinquishment or abandonment — express or implied — of a legal right or advantage." Black's Law Dictionary 1574 (7th ed. 1999).
Another legal dictionary defines "waiver" as ”[t]he intentional relinquishment of a known right, claim, or privilege." Ballentine's Law Dictionary 1356 (3d ed. 1969) (citing Phillips v. Lagaly, 214 F.2d 527 (10th Cir. 1954); Smith v. Smith, 51 N.W.2d 276 (Minn. 1952)). Yet another legal dictionary defines "waiver" as "[t]he intentional relinquishment of a known right." 3 Bouvier's Law Dictionary and Concise Encyclopedia 3417 (8th ed. 1914) (citing Lehigh Valley R. Co. v. Providence Wash. Ins. Co., 172 Fed. 364 (2nd Cir. 1909)).
For discussion of Wis. Stat. § 806.02(2), see Stein v. Illinois State Assistance Commission, 194 Wis. 2d 775, 782, 535 N.W.2d 101 (Ct. App. 1995).
The majority opinion quotes a decision from the Fifth Circuit: "Assuming that [the party] had the right to a jury trial he waived that right when he purposefully chose not to answer the suit and timely request such a trial." Majority op., ¶ 48 (quoting Dierschke v. O'Cheskey, 975 F.2d 181, 185 (5th Cir. 1992)) (emphasis added).
This authority is not applicable; WMAS answered Rao's amended complaint on June 2, 2005.
Wisconsin Stat. § 885.11(5) currently reads: "Striking out pleading. If any party to an action or proceeding shall unlawfully refuse or neglect to appear or testify or depose therein, either within or without the state, the court may, also, strike out the party's pleading, and give judgment against the party as upon default or failure of proof." The current subsection is virtually identical to the subsection when Gipson Lumber Co. v. Schickling, 56 Wis. 2d 164, 201 N.W.2d 500 (1972), was decided.
The court cited Societe Internationale Pour Participations Industrielles Et Commerciales, S.A. v. Rogers, 357 U.S. 197 *690(1958), Hammond Packing Co. v. Arkansas, 212 U.S. 322 (1909), and Hovey v. Elliott, 167 U.S. 409 (1897).
"[T]here are constitutional limitations upon the power of courts, even in aid of their own valid processes, to dismiss an *697action without affording a party the opportunity for a hearing on the merits of his cause." Societe Internationale, 357 U.S. at 209.
See U.S. for the Use of M-CO Constr., Inc. v. Shipco Gen., Inc., 814 F.2d 1011, 1014 (5th Cir. 1987) (interpreting Federal Rule of Civil Procedure 37(b)).
Generally, with respect to a tort claim seeking recovery of money, the demand for judgment may not specify the amount of *699money the pleader seeks. Wis. Stat. § 802.02(lm)(a). However, this general rule does not control the complaint in all other cases.
The circuit court's explanation of its additional sanction here was: "The motion for a jury trial is denied. I don't think that a person in default is entitled to a jury trial on an issue of damages, although they are permitted to participate in that hearing on damages."
This language is similar to that of Wis. Const, art. I, § 5.
The quoted language from Florida Rule of Civil Procedure 1.430(d) is virtually identical to that found in the Wisconsin Statutes. Wis. Stat. § 805.01(3) ("A demand for trial by jury made as herein provided may not be withdrawn without the consent of the parties.").