802.08 History
History: Sup. Ct. Order,
67 Wis. 2d 585, 630 (1975);
1975 c. 218; Sup. Ct. Order, 82 Wis. 2d ix; Sup. Ct. Order, 141 Wis. 2d xix;
1987 a. 256; Sup. Ct. Order, 168 Wis. 2d xxii;
1993 a. 490;
1997 a. 254.
802.08 Note
Judicial Council Committee's Note, 1977: Sub. (1) is revised to allow a party at any time within 8 months after the summons and complaint are filed or the time established in a scheduling order under s. 802.10 to move for a summary judgment. The 8-month time period has been created as the old procedure requiring a party to move for summary judgment not later than the time provided under s. 802.10 can no longer apply in most cases as the use of such a scheduling order is now completely discretionary with the trial judge. The 8-month time period is subject to enlargement under s. 801.15 (2) (a). [Re Order effective July 1, 1978]
802.08 Note
Judicial Council Note, 1988: Sub. (7) [created] allows oral arguments permitted on motions for summary judgment to be heard by telephone conference. [Re Order effective Jan. 1, 1988]
802.08 Note
Judicial Council Note, 1992: The prior sub. (2), allowing service of affidavits opposing summary judgment up to the date of hearing, afforded such minimal notice to the court and moving party that a plethora of local court rules resulted. Community Newspapers, Inc. v. West Allis,
158 Wis. 2d 28,
461 N.W.2d 785 (Ct. App. 1990). Requiring such affidavits to be served at least 5 days before the hearing is intended to preclude such local rules and promote uniformity of practice. Courts may require earlier filing by scheduling orders, however. [Re Order effective July 1, 1992]
802.08 Annotation
When the plaintiff had signed a release, and when another illness subsequently developed, whether the plaintiff consciously intended to disregard the possibility that a known condition could become aggravated was a question of fact not to be determined on summary judgment. Krezinski v. Hay,
77 Wis. 2d 569,
253 N.W.2d 522 (1977).
802.08 Annotation
Summary judgment procedure is not authorized in proceedings for judicial review under ch. 227. Wisconsin Environmental Decade v. Public Service Commission,
79 Wis. 2d 161,
255 N.W.2d 917 (1977).
802.08 Annotation
When an insurance policy unambiguously excluded coverage relating to warranties, a factual question whether implied warranties were made was immaterial and the trial court abused its discretion in denying the insurer's summary judgment motion. Jones v. Sears Roebuck & Co.
80 Wis. 2d 321,
259 N.W.2d 70 (1977).
802.08 Annotation
Use of the mandatory language in sub. (2) that "judgment shall be rendered" means that trial courts do not have wide latitude in deciding summary judgment motions and that appeals of decisions to grant or deny summary judgment be given exacting scrutiny. Wright v. Hasley,
86 Wis. 2d 572,
273 N.W.2d 319 (1979).
802.08 Annotation
When a stipulation to the facts of a case did not satisfy the formal requirements of s. 807.05, summary judgment was improper. Wilharms v. Wilharms,
93 Wis. 2d 671,
287 N.W.2d 779 (1980).
802.08 Annotation
The existence of a new or difficult issue of law does not make summary judgment inappropriate. Maynard v. Port Publications, Inc.
98 Wis. 2d 555,
297 N.W.2d 500 (1980).
802.08 Annotation
A conviction for injury by conduct regardless of life did not establish that the injury was intentional or expected and did not entitle the insurer to summary judgment on a policy exclusion issue. Poston v. U.S. Fidelity & Guarantee Co.
107 Wis. 2d 215,
320 N.W.2d 9 (Ct. App. 1982).
802.08 Annotation
Summary judgment can be based upon a party's failure to respond to a request for admissions, even if the admissions would be dispositive of the entire case. Bank of Two Rivers v. Zimmer,
112 Wis. 2d 624,
334 N.W.2d 230 (1983).
802.08 Annotation
An appellate court reviews the trial court's decision by applying the same standards and methods as did the trial court. Green Spring Farms v. Kersten,
136 Wis. 2d 304,
401 N.W.2d 816 (1987).
802.08 Annotation
When the only issue before the court requires expert testimony for resolution, the trial court on summary judgment may determine whether the party has made a prima facie showing that it can, in fact, produce favorable testimony. Dean Medical Center v. Frye,
149 Wis. 2d 727,
439 N.W.2d 633 (Ct. App. 1989).
802.08 Annotation
CHIPS proceedings are controlled by the Code of Civil Procedure unless ch. 48 requires a different procedure, and summary judgment is available. Interest of F.Q.
162 Wis. 2d 607,
470 N.W.2d 1 (Ct. App. 1991).
802.08 Annotation
Summary judgment does not apply to cases brought under the criminal code. State v. Hyndman,
170 Wis. 2d 198,
488 N.W.2d 111 (Ct. App. 1992).
802.08 Annotation
Involuntary commitment may not be ordered on summary judgment. Matter of Mental Condition of Shirley J.C.
172 Wis. 2d 371,
493 N.W.2d 382 (Ct. App. 1992).
802.08 Annotation
In a trial to the court, the court may not base its decision on affidavits submitted in support of a summary judgment. Proof offered in support of summary judgment is for determining if an issue of fact exists. When one does, summary judgment proof gives way to trial proof. Berna-Mork v. Jones,
173 Wis. 2d 733,
496 N.W.2d 637 (Ct. App. 1992).
802.08 Annotation
A party's affidavit that contradicted that same party's earlier deposition raised an issue of fact, making summary judgment inappropriate. Wolski v. Wilson,
174 Wis. 2d 533,
497 N.W.2d 794 (Ct. App. 1993).
802.08 Annotation
A 4-step methodology for determining and reviewing a summary judgment motion is stated. The use of trial material to sustain a grant or denial of summary judgment is inconsistent with this methodology. Universal Die & Stampings v. Justus,
174 Wis. 2d 556,
497 N.W.2d 797 (Ct. App. 1993).
802.08 Annotation
When expert testimony is required to establish a party's claim, evidentiary material from an expert is necessary in response to a summary judgment motion. Holsen v. Heritage Mut. Ins. Co.
182 Wis. 2d 457,
513 N.W.2d 690 (Ct. App. 1994).
802.08 Annotation
The court of appeals has authority to grant a summary judgment on appeal of a motion that was denied by the trial court. Interest of Courtney E.
184 Wis. 2d 592,
516 N.W.2d 422 (1994).
802.08 Annotation
Trial courts have the authority to convert a motion to dismiss to a motion for summary judgment when matters outside the pleading are considered. Schopper v. Gehring,
210 Wis. 2d 209,
565 N.W.2d 187 (Ct. App. 1997).
802.08 Annotation
If a litigant who is not the subject of a motion for summary judgment has reason to dispute facts supporting the motion, the litigant has a duty to appear and object to the motion. If summary judgment is granted, the facts underlying the judgment are binding on all parties to the suit as a matter of issue preclusion. Precision Erecting v. M&I Marshall & Ilsley Bank,
224 Wis. 2d 288,
592 N.W.2d 5 (Ct. App. 1998).
802.08 Annotation
The federal "sham affidavit rule" is adopted. An affidavit that directly contradicts prior deposition testimony generally does not create a genuine issue of fact for trial unless the contradiction is adequately explained. Yahnke v. Carson, 2000 WI 74,
236 Wis. 2d 257,
613 N.W.2d 102.
802.08 Annotation
Generally review of a summary judgment is de novo, but when a summary judgment is based on an equitable right, legal issues are reviewed de novo while equitable relief, which is discretionary with the trial court, will be overturned only if there is an absence of the exercise of discretion. Pietrowski v. Dufrane, 2001 WI App 175,
247 Wis. 2d 232,
634 N.W.2d 109.
802.08 Annotation
Summary judgment procedure is inconsistent with, and unworkable in, ch. 345 forfeiture proceeding. State v. Schneck, 2002 WI App 239,
257 Wis. 2d 704,
652 N.W.2d 434.
802.08 Annotation
In the absence of an answer to a cross-claim and in the absence of any other responsive pleadings, a court may deem facts alleged in the cross-claim and submissions filed in connection with a summary judgment motion admitted for purposes of summary judgment. Daughtry v. MPC Systems, Inc. 2004 WI App 70,
272 Wis. 2d 260,
6679 N.W.2d 808,
02-2424.
802.09
802.09
Amended and supplemental pleadings. 802.09(1)(1)
Amendments. A party may amend the party's pleading once as a matter of course at any time within 6 months after the summons and complaint are filed or within the time set in a scheduling order under
s. 802.10. Otherwise a party may amend the pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given at any stage of the action when justice so requires. A party shall plead in response to an amended pleading within 45 days after service of the amended pleading, or within 20 days after the service if the proceeding is to foreclose or otherwise enforce a lien or security interest, unless (a) the court otherwise orders or (b) no responsive pleading is required or permitted under
s. 802.01 (1).
802.09(2)
(2) Amendments to conform to the evidence. If issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure to so amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice such party in maintaining the action or defense upon the merits. The court may grant a continuance to enable the objecting party to meet such evidence.
802.09(3)
(3) Relation back of amendments. If the claim asserted in the amended pleading arose out of the transaction, occurrence, or event set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the filing of the original pleading. An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by law for commencing the action against such party, the party to be brought in by amendment has received such notice of the institution of the action that he or she will not be prejudiced in maintaining a defense on the merits, and knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against such party.
802.09(4)
(4) Supplemental pleadings. Upon motion of a party the court may, upon such terms as are just, permit the party to serve a supplemental pleading setting forth transactions or occurrences or events which have happened since the date of the pleading sought to be supplemented. Permission may be granted even though the original pleading is defective in its statement of a claim for relief or defense. If the court deems it advisable that the adverse party plead to the supplemental pleading, it shall so order, specifying the time therefor.
802.09(5)
(5) Telephone hearings. Oral argument permitted on motions under this section may be heard as prescribed in
s. 807.13 (1).
802.09 History
History: Sup. Ct. Order,
67 Wis. 2d 585, 632 (1975);
1975 c. 218; Sup. Ct. Order, 82 Wis. 2d ix (1978); Sup. Ct. Order, 141 Wis. 2d xiii (1987);
1997 a. 187;
2001 a. 16.
802.09 Note
Judicial Council Committee's Note, 1977: Sub. (1) has been amended to allow a party to amend pleadings once as a matter of course at any time within 6 months of the time the summons and complaint are filed or within a time established in a scheduling order under s. 802.10. The 6-month time period has been established as the previous procedure stating that a party is allowed to amend pleadings once as a matter of course at any time prior to the entry of a scheduling order is no longer applicable in most cases. The use of a scheduling order is now discretionary under s. 802.10.
802.09 Annotation
Sub. (1) also clarifies that leave of the court may be given at any stage of the action for amendment of pleadings when justice requires.
802.09 Annotation
Sub. (3) has been amended to adopt language consistent with revised s. 802.02 (1). See note following s. 802.02 (1). [Re Order effective July 1, 1978]
802.09 Note
Judicial Council Note, 1988: Sub. (5) [created] allows oral arguments permitted on motions under this section to be heard by telephone conference. [Re Order effective Jan. 1, 1988]
802.09 Annotation
Amendments should not be allowed 8 years after an accident and 5 years beyond the running of the statute of limitations. Drehmel v. Radandt,
75 Wis. 2d 223,
249 N.W.2d 274 (1977).
802.09 Annotation
The trial court abused its discretion in prohibiting amendment of the pleadings on the 2nd day of trial to plead quantum meruit as an alternative to substantial performance of the contract. Tri-State Home Improvement Co. v. Mansavage,
77 Wis. 2d 648,
253 N.W.2d 474 (1977).
802.09 Annotation
Under sub. (2), a complaint will be treated as amended, even though no amendment has been requested, when proof has been submitted and accepted. Goldman v. Bloom,
90 Wis. 2d 466,
280 N.W.2d 170 (1979).
802.09 Annotation
Sub. (3) is identical to FRCP 15 (c). "Changing the party" includes adding a defendant when the requirements of sub. (3) are met. State v. One 1973 Cadillac,
95 Wis. 2d 641,
291 N.W.2d 626 (Ct. App. 1980).
802.09 Annotation
In a products liability action, a new cause of action for punitive damages brought after the statute of limitations expired related back to the date of filing the original pleading. Wussow v. Commercial Mechanisms, Inc.
97 Wis. 2d 136,
293 N.W.2d 897 (1980).
802.09 Annotation
When an action against an unnamed defendant under s. 807.12 was filed on the last day of the limitation period and amended process naming the defendant was served within 60 days after filing, the action was not barred. Relation back requirements of sub. (3) were inapplicable. Lak v. Richardson-Merrell, Inc.
100 Wis. 2d 641,
302 N.W.2d 483 (1981).
802.09 Annotation
While the circuit court was correct in holding that it had the power to amend a complaint on its own motion after the presentation of evidence, the court erred in not granting the parties the opportunity to present additional evidence on the complaint as amended. State v. Peterson,
104 Wis. 2d 616,
312 N.W.2d 784 (1981).
802.09 Annotation
An amended pleading adding a separate claim by a different plaintiff related back to the date of filing the original complaint. Korkow v. General Casualty Co. of Wisconsin,
117 Wis. 2d 187,
344 N.W.2d 108 (1984).
802.09 Annotation
Implied consent under sub. (2) requires that the parties understood that evidence was aimed at unpleaded issues. Even after a finding of no implied consent an "interests of justice" determination, which is essentially a determination of prejudice, must be made. Zobel v. Fenendael,
127 Wis. 2d 382,
379 N.W.2d 887 (Ct. App. 1985).
802.09 Annotation
Whether an amendment "relates back" to the original complaint date depends on whether the opposing party had notice of the claim from the original complaint. An insurer who insures more than one party involved in an accident does not, as a matter of law, have notice of separate claims under different policies from a complaint against one of its insureds, but it may have notice of a claim against more than one insured if they are covered by the same policy. Biggart v. Barstad,
182 Wis. 2d 421,
513 N.W.2d 681 (Ct. App. 1994).
802.09 Annotation
A plaintiff's response to a motion for a more definite answer, no matter how termed, cannot extinguish the right to amend within 6 months as a matter of course. Kox v. Center for Oral & Maxillofacial Surgery, S.C.
218 Wis. 2d 93,
579 N.W.2d 285 (Ct. App. 1998).
802.09 Annotation
An amended complaint that makes no reference to or incorporates any of the original complaint supercedes the original complaint when the amended complaint is filed in court. When such a complaint was filed prior to the time for answering the original complaint had run, it was improper to enter a default judgment on the original complaint. Holman v. Family Health Plan,
227 Wis. 2d 478,
596 N.W.2d 358 (1999).
802.09 Annotation
Sub. (3) requires receipt of notice of the institution of the action within the statute of limitation period. Grothe v. Valley Coatings, Inc. 2000 WI App 240,
239 Wis. 2d 406,
620 N.W.2d 463.
802.09 Annotation
"Changing the party" under sub. (3) can mean: 1) substitution of a new defendant for the present defendant; 2) addition of a defendant; 3) changing the stated capacity of the defendant; and 4) changing a misdescription or misnaming of the defendant. To add a party there must have existed a mistake concerning the identity of the proper party being added when the original pleading was filed. Identity includes an individual's name and physical characteristics that distinguish that person from another. Confusion about a person's role in a negligent act is not a question of identity and an amendment to include that person does not relate back. Estate of Hegarty v. Beauchaine, 2001 WI App 300,
249 Wis. 2d 142,
638 N.W.2d 355.
802.09 Annotation
Absent a showing of prejudice, the trial court did not erroneously exercise its discretion by sua sponte amending the pleadings to apply the evidence before it. Schultz v. Trascher, 2002 WI App 4,
249 Wis. 2d 722,
640 N.W.2d 130.
802.09 Annotation
The second sentence of sub. (3) refers only to a party against whom a claim is asserted and is not applicable in deciding under what circumstances a court may properly allow an amendment adding a plaintiff to relate back. Gross v. Woodman's Food Market, Inc. 2002 WI App 295,
259 Wis. 2d 181,
655 N.W.2d 718,
01-1746.
802.09 Annotation
"At any stage of the action" in sub. (1) is broad enough to include one week after a motion for summary judgment is granted. For a motion to amend a complaint filed after a motion for summary judgment has been granted, the party seeking to amend must present a reason for granting the motion that is sufficient to overcome the value of the finality of judgment. Why the party has not acted sooner, the length of time since the filing of the original complaint, the number and nature of prior amendments, and the nature of the proposed amendment are all relevant considerations, as is the effect on the defendant. Mach v. Allison, 2003 WI App 11,
259 Wis. 2d 686,
656 N.W.2d 766,
02-0928.
802.09 Annotation
If the original pleading was filed within the statute of limitations and the conditions of sub. (3) are met, the fact that a statute of limitations has expired between the filing of the summons and complaint and the motion to amend is not a reason to deny the motion. Town of Campbell v. City of La Crosse, 2003 WI App 247,
268 Wis. 2d 253,
673 N.W.2d 696,
02-2541.
802.10
802.10
Calendar practice. 802.10(1)(1)
Application. This section applies to all actions and special proceedings except appeals taken to circuit court, actions seeking the remedy available by certiorari, habeas corpus, mandamus, prohibition and quo warranto, actions in which all defendants are in default, provisional remedies, and actions under
ss. 49.90 and
s. 66.0114 and
chs. 48,
102,
108,
227,
348,
767,
778,
799 and
812, and proceedings under
chs. 851 to
882.
802.10(3)
(3) Scheduling and planning. Except in categories of actions and special proceedings exempted under
sub. (1), the circuit court may enter a scheduling order on the court's own motion or on the motion of a party. The order shall be entered after the court consults with the attorneys for the parties and any unrepresented party. The scheduling order may address any of the following:
802.10(3)(e)
(e) The time, not more than 30 days after entry of the order, to determine the mode of trial, including a demand for a jury trial and payment of fees under
s. 814.61 (4).
802.10(3)(f)
(f) The limitation, control and scheduling of depositions and discovery, including the identification and disclosures of expert witnesses, the limitation of the number of expert witnesses and the exchange of the names of expert witnesses.
802.10(3)(g)
(g) The dates for conferences before trial, for a final pretrial conference and for trial.
802.10(3)(h)
(h) The appropriateness and timing of summary judgment adjudication under
s. 802.08.
802.10(3)(i)
(i) The advisability of ordering the parties to attempt settlement under
s. 802.12.
802.10(3)(j)
(j) The need for adopting special procedures for managing potentially difficult or protracted actions that may involve complex issues, multiple parties, difficult legal questions or unusual proof problems.
802.10(3)(k)
(k) Any other matters appropriate to the circumstances of the case, including the matters under
sub. (5) (a) to
(h).
802.10(5)
(5) Pretrial conference. At a pretrial conference, the court may consider any matter that facilitates the just, speedy and inexpensive disposition of the action, including the matters under
pars. (a) to
(h) and
sub. (3) (a) to
(k). At a pretrial conference, the court may consider and take appropriate action with respect to all of the following:
802.10(5)(a)
(a) The formulation and simplification of the issues.
802.10(5)(b)
(b) The elimination of frivolous claims or defenses.
802.10(5)(c)
(c) The possibility of obtaining party admissions or stipulations that will avoid unnecessary proof.
802.10(5)(d)
(d) Any pretrial rulings on the admissibility of evidence, including limitations on the use of expert testimony under
s. 907.02.
802.10(5)(e)
(e) The identification of witnesses, exhibits and tangible demonstrative evidence.
802.10(5)(f)
(f) The need and schedule for filing and exchanging pretrial briefs.
802.10(5)(g)
(g) The dates for further conferences and for trial.
802.10(6)
(6) Authority of participants. An attorney for each party participating in any pretrial conference shall have the authority to enter stipulations and to make admissions regarding all matters that the participants may reasonably anticipate may be discussed. The court may require that a party or the party's representative be present or reasonably available by telephone to consider possible settlement of the dispute.
802.10 History
History: Sup. Ct. Order,
67 Wis. 2d 585, 634 (1975);
1975 c. 218; Sup. Ct. Order, 82 Wis. 2d ix (1978);
1979 c. 32 s.
92 (4);
1979 c. 89,
177;
1981 c. 289;
1985 a. 29 s.
3202 (23); Sup. Ct. Order, 141 Wis. 2d xiii (1987);
1993 a. 486; Sup. Ct. Order No.
95-04, 191 Wis. 2d xxi (1995);
1999 a. 150 s.
672;
2001 a. 30 s.
108.
802.10 Annotation
The trial court properly granted default judgment against a party failing to appear at a scheduling conference, but the damage amount was not supported by the record. Gaertner v. 880 Corp.
131 Wis. 2d 492,
389 N.W.2d 59 (Ct. App. 1986).
802.10 Annotation
Sections 802.10 (7) and 805.03 apply in criminal cases. A court has power to sanction a tardy attorney under these sections. Failure to delineate the reasons for the sanctions is an erroneous exercise of discretion. Anderson v. Circuit Court for Milwaukee County,
219 Wis. 2d 1,
578 N.W.2d 533 (1998).
802.12
802.12
Alternative dispute resolution. 802.12(1)(a)
(a) "Binding arbitration" means a dispute resolution process that meets all of the following conditions:
