802.06 Defenses and objection; when and how presented; by pleading or motion; motion for judgment on the pleadings.
802.07 Counterclaim and cross-claim.
802.09 Amended and supplemental pleadings.
802.10 Calendar practice.
802.12 Alternative dispute resolution.
Ch. 802 Note
NOTE: Chapter 802 was created by Sup. Ct. Order, 67 W (2d) 585, 614 (1975), which contains Judicial Council Committee notes explaining each section. Statutes prior to the 1983-84 edition also have these notes.
802.01
802.01
Pleadings allowed; form of motions. 802.01(1)
(1)
Pleadings. There shall be a complaint and an answer; a reply to a counterclaim denominated as such; an answer to a cross-claim, if the answer contains a cross-claim; a third-party complaint, if a person who was not an original party is summoned under
s. 803.05, and a third-party answer, if a third-party complaint is served. No other pleading shall be allowed, except that the court may order a further pleading to a reply or to any answer.
802.01(2)(a)(a)
How made. An application to the court for an order shall be by motion which, unless made during a hearing or trial, shall be made in writing, shall state with particularity the grounds therefor, and shall set forth the relief or order sought. The requirement of writing is fulfilled if the motion is stated in a written notice of the hearing of the motion. Unless specifically authorized by statute, orders to show cause shall not be used.
802.01(2)(b)
(b)
Supporting papers. Copies of all records and papers upon which a motion is founded, except those which have been previously filed or served in the same action or proceeding, shall be served with the notice of motion and shall be plainly referred to therein. Papers already filed or served shall be referred to as papers theretofore filed or served in the action. The moving party may be allowed to present upon the hearing, records, affidavits or other papers, but only upon condition that opposing counsel be given reasonable time in which to meet such additional proofs should request therefor be made.
802.01(2)(c)
(c)
Recitals in orders. All orders, unless they otherwise provide, shall be deemed to be based on the records and papers used on the motion and the proceedings theretofore had and shall recite the nature of the motion, the appearances, the dates on which the motion was heard and decided, and the order signed. No other formal recitals are necessary.
802.01(2)(d)
(d)
Formal requirements. The rules applicable to captions, signing and other matters of form of pleadings apply to all motions and other papers in an action, except that affidavits in support of a motion need not be separately captioned if served and filed with the motion. The name of the party seeking the order or relief and a brief description of the type of order or relief sought shall be included in the caption of every written motion.
802.01(2)(e)
(e)
When deemed made. In computing any period of time prescribed or allowed by the statutes governing procedure in civil actions and special proceedings, a motion which requires notice under
s. 801.15 (4) shall be deemed made when it is served with its notice of motion.
802.01(3)
(3) Demurrers and pleas abolished. Demurrers and pleas shall not be used.
802.01 History
History: Sup. Ct. Order, 67 W (2d) 585, 614 (1975); Sup. Ct. Order, 104 W (2d) xi (1981); Sup. Ct. Order, 171 W (2d) xix (1992).
802.01 Note
Judicial Council Committee's Note on sub. (1), 1981: See 1981 Note to s. 802.02 (4). [Re Order effective Jan. 1, 1982]
802.02
802.02
General rules of pleading. 802.02(1)
(1)
Contents of pleadings. A pleading or supplemental pleading that sets forth a claim for relief, whether an original or amended claim, counterclaim, cross claim or 3rd-party claim, shall contain all of the following:
802.02(1)(a)
(a) A short and plain statement of the claim, identifying the transaction or occurrence or series of transactions or occurrences out of which the claim arises and showing that the pleader is entitled to relief.
802.02(1)(b)
(b) A demand for judgment for the relief the pleader seeks.
802.02(1m)(a)(a) Relief in the alternative or of several different types may be demanded. With respect to a tort claim seeking the recovery of money, the demand for judgment may not specify the amount of money the pleader seeks.
802.02(1m)(b)
(b) This subsection does not affect any right of a party to specify to the jury or the court the amount of money the party seeks.
802.02(2)
(2) Defenses; form of denials. A party shall state in short and plain terms the defenses to each claim asserted and shall admit or deny the averments upon which the adverse party relies. If the party is without knowledge or information sufficient to form a belief as to the truth of an averment, the party shall so state and this has the effect of a denial. Denials shall fairly meet the substance of the averments denied. The pleader shall make the denials as specific denials of designated averments or paragraphs, but if a pleader intends in good faith to deny only a part or a qualification of an averment, the pleader shall specify so much of it as is true and material and shall deny only the remainder.
802.02(3)
(3) Affirmative defenses. In pleading to a preceding pleading, a party shall set forth affirmatively any matter constituting an avoidance or affirmative defense including but not limited to the following: accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of a condition subsequent, failure or want of consideration, failure to mitigate damages, fraud, illegality, immunity, incompetence, injury by fellow servants, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, superseding cause, and waiver. When a party has mistakenly designated a defense as a counterclaim or a counterclaim as a defense, the court, if justice so requires, shall permit amendment of the pleading to conform to a proper designation. If an affirmative defense permitted to be raised by motion under
s. 802.06 (2) is so raised, it need not be set forth in a subsequent pleading.
802.02(4)
(4) Effect of failure to deny. Averments in a pleading to which a responsive pleading is required, other than those as to the fact, nature and extent of injury and damage, are admitted when not denied in the responsive pleading, except that a party whose prior pleadings set forth all denials and defenses to be relied upon in defending a claim for contribution need not respond to such claim. Averments in a pleading to which no responsive pleading is required or permitted shall be taken as denied or avoided.
802.02(5)
(5) Pleadings to be concise and direct; consistency. 802.02(5)(a)(a) Each averment of a pleading shall be simple, concise, and direct. No technical forms of pleading or motions are required.
802.02(5)(b)
(b) A party may set forth 2 or more statements of a claim or defense alternatively or hypothetically, either in one claim or defense or in separate claims or defenses. When 2 or more statements are made in the alternative and one of them if made independently would be sufficient, the pleading is not made insufficient by the insufficiency of one or more of the alternative statements. A party may also state as many separate claims or defenses as the party has regardless of consistency and whether based on legal or equitable grounds. All statements shall be made subject to the obligations set forth in
s. 802.05.
802.02(6)
(6) Construction of pleadings. All pleadings shall be so construed as to do substantial justice.
802.02 History
History: Sup. Ct. Order, 67 W (2d) 585, 616 (1975);
1975 c. 218; Sup. Ct. Order, 82 W (2d) ix (1978); Sup. Ct. Order, 104 W (2d) xi (1981);
1987 a. 256;
1993 a. 486.
802.02 Annotation
Cross-references: For effect of demand for judgment or want of such demand in the complaint in case of judgment by default, see s. 806.01 (1) (c).
802.02 Annotation
As to the effect of not denying an allegation in the complaint of corporate or partnership existence, see 891.29 and 891.31.
802.02 Note
Judicial Council Committee's Note, 1977: Sub. (1) is amended to allow a pleading setting forth a claim for relief under the Rules of Civil Procedure to contain a short and plain statement of any series of transactions, occurrences, or events under which a claim for relief arose. This modification will allow a pleader in a consumer protection or anti-trust case, for example, to plead a pattern of business transactions, occurrences or events leading to a claim of relief rather than having to specifically plead each and every transaction, occurrence or event when the complaint is based on a pattern or course of business conduct involving either a substantial span of time or multiple and continuous transactions and events. The change is consistent with Rule 8 (a) (2) of the Federal Rules of Civil Procedure. [Re Order effective July 1, 1978]
802.02 Note
Judicial Council Committee's Note, 1981: Sub. (4) has been amended and s. 802.07 (6) repealed to limit the circumstances in which a responsive pleading to a claim for contribution is required. A claim for contribution is a claim for relief under sub. (1) which normally requires an answer, reply or third-party answer. The amendment to sub. (4), however, eliminates this requirement where the party from whom contribution is sought has already pleaded all denials and defenses to be relied upon in defending the contribution claim. [Re Order effective Jan. 1, 1982]
802.02 Annotation
See note to 802.07, citing S & M Rotogravure Service, Inc. v. Baer, 77 W (2d) 454, 252 NW (2d) 913.
802.02 Annotation
In action for injuries allegedly sustained as result of 3 separate surgical procedures performed by 2 unassociated doctors residing in different counties, separate places of trial were required and joinder of separate causes of action was improper. Voight v. Aetna Casualty & Surety Co. 80 W (2d) 376, 259 NW (2d) 85.
802.02 Annotation
Sub. (2) doesn't authorize denials for lack of knowledge or information solely to obtain delay; answer was frivolous under 814.025 (3) (b). First Federated Sav. v. McDonah, 143 W (2d) 429, 422 NW (2d) 113 (Ct. App. 1988).
802.02 Annotation
Insurers must plead and prove their policy limits prior to verdict to restrict the judgment to the policy limits. Price v. Hart, 166 W (2d) 182, 480 NW (2d) 249 (Ct. App. 1991).
802.03
802.03
Pleading special matters. 802.03(1)
(1)
Capacity. It is not necessary to aver the capacity of a party to sue or be sued or the authority of a party to sue or be sued in a representative capacity or the legal existence of an organized association of persons that is made a party. If a party desires to raise an issue as to the legal existence of any party or the capacity of any party to sue or be sued or the authority of a party to sue or be sued in a representative capacity, the party shall do so by specific negative averment which shall include such supporting particulars as are peculiarly within the pleader's knowledge, or by motion under
s. 802.06 (2).
802.03(2)
(2) Fraud, mistake and condition of mind. In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity. Malice, intent, knowledge, and other condition of mind of a person may be averred generally.
802.03(3)
(3) Conditions precedent. In pleading the performance or occurrence of conditions precedent in a contract, it shall not be necessary to state the facts showing such performance or occurrence, but it may be stated generally that the party duly performed all the conditions on his or her part or that the conditions have otherwise occurred or both. A denial of performance or occurrence shall be made specifically and with particularity. If the averment of performance or occurrence is controverted, the party pleading performance or occurrence shall be bound to establish on the trial the facts showing such performance or occurrence.
802.03(4)
(4) Official document or act. In pleading an official document or official act it is sufficient to aver that the document was issued or the act done in compliance with the law.
802.03(5)
(5) Judgment. In pleading a judgment or decision of a domestic or foreign court, judicial or quasi-judicial tribunal, or of a board or officer, it is sufficient to aver the judgment or decision without setting forth matter showing jurisdiction to render it.
802.03(6)
(6) Libel or slander. In an action for libel or slander, the particular words complained of shall be set forth in the complaint, but their publication and their application to the plaintiff may be stated generally.
802.03(7)
(7) Sales of goods, etc. In an action involving the sale and delivery of goods or the performing of labor or services, or the furnishing of materials, the plaintiff may set forth and number in the complaint the items of the plaintiff's claim and the reasonable value or agreed price of each. The defendant by the answer shall indicate specifically those items defendant disputes and whether in respect to delivery or performance, reasonable value or agreed price. If the plaintiff does not so plead the items of the claim, the plaintiff shall deliver to the defendant, within 10 days after service of a demand therefor in writing, a statement of the items of the plaintiff's claim and the reasonable value or agreed price of each.
802.03(8)
(8) Time and place. For the purpose of testing the sufficiency of a pleading, averments of time and place are material and shall be considered like all other averments of material matter.
802.03 History
History: Sup. Ct. Order, 67 W (2d) 585, 619 (1975);
1975 c. 218.
802.03 Annotation
Effect of (8) discussed. Schweiger v. Loewi & Co., Inc. 65 W (2d) 56, 221 NW (2d) 882.
802.03 Annotation
"American rule" of absolute judicial immunity from liability for libel or slander discussed. Converters Equip. Corp. v. Condes Corp. 80 W (2d) 257, 258 NW (2d) 712.
802.03 Annotation
Where libel action is based on conduct rather than words, (6) is not applicable. Starobin v. Northridge Lakes Development Co. 94 W (2d) 1, 287 NW (2d) 747 (1980).
802.03 Annotation
Sub. (2) does not prevent the trial court from amending the pleadings to conform with the evidence pursuant to s. 802.09 as long as the parties either consent or have the chance to submit additional proof. Maiers v. Wang, 192 W (2d) 115, 531 NW (2d) 54 (1995).
802.04
802.04
Form of pleadings. 802.04(1)(1)
Caption. Every pleading shall contain a caption setting forth the name of the court, the venue, the title of the action, the file number, and a designation as in
s. 802.01 (1). If a pleading contains motions, or an answer or reply contains cross-claims or counterclaims, the designation in the caption shall state their existence. In the complaint the caption of the action shall include the standardized description of the case classification type and associated code number as approved by the director of state courts, and the title of the action shall include the names and addresses of all the parties, indicating the representative capacity, if any, in which they sue or are sued and, in actions by or against a corporation, the corporate existence and its domestic or foreign status shall be indicated. In pleadings other than the complaint, it is sufficient to state the name of the first party on each side with an appropriate indication of other parties. Every pleading commencing an action under
s. 814.61 (1) (a) or
814.62 (1) or
(2) and every complaint filed under
s. 814.61 (3) shall contain in the caption, if the action includes a claim for a money judgment, a statement of whether the amount claimed is greater than the amount under
s. 799.01 (1) (d).
802.04(2)
(2) Paragraphs; separate statements. All averments of claim or defense shall be made in numbered paragraphs, the contents of each of which shall be limited as far as practicable to a statement of a single set of circumstances; and a paragraph may be referred to by number in all succeeding pleadings. Each claim founded upon a separate transaction or occurrence and each defense other than denials shall be stated in a separate claim or defense whenever a separation facilitates the clear presentation of the matters set forth. A counterclaim must be pleaded as such and the answer must demand the judgment to which the defendant supposes to be entitled upon the counterclaim.
802.04(3)
(3) Adoption by reference; exhibits. Statements in a pleading may be adopted by reference in a different part of the same pleading or in another pleading or in any motion. A copy of any written instrument which is an exhibit to a pleading is a part thereof for all purposes.
802.04 History
History: Sup. Ct. Order, 67 W (2d) 585, 621 (1975);
1975 c. 218; Sup. Ct. Order, 171 W (2d) xix (1992);
1995 a. 27.
802.05
802.05
Signing of pleadings, motions and other papers; sanctions. 802.05(1)(a)(a) Every pleading, motion or other paper of a party represented by an attorney shall contain the name, state bar number, if any, telephone number, and address of the attorney and the name of the attorney's law firm, if any, and shall be subscribed with the handwritten signature of at least one attorney of record in the individual's name. A party who is not represented by an attorney shall subscribe the pleading, motion or other paper with the party's handwritten signature and state his or her address. Except when otherwise specifically provided by rule or statute, pleadings need not be verified or accompanied by affidavit. The signature of an attorney or party constitutes a certificate that the attorney or party has read the pleading, motion or other paper; that to the best of the attorney's or party's knowledge, information and belief, formed after reasonable inquiry, the pleading, motion or other paper is well-grounded in fact and is warranted by existing law or a good faith argument for the extension, modification or reversal of existing law; and that the pleading, motion or other paper is not used for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. If a pleading, motion or other paper is not signed, it shall be stricken unless it is signed promptly after the omission is called to the attention of the pleader or movant. If the court determines that an attorney or party failed to read or make the determinations required under this subsection before signing any petition, motion or other paper, the court may, upon motion or upon its own initiative, impose an appropriate sanction on the person who signed the pleading, motion or other paper, or on a represented party, or on both. The sanction may include an order to pay to the other party the amount of reasonable expenses incurred by that party because of the filing of the pleading, motion or other paper, including reasonable attorney fees.
802.05(1)(b)
(b) If the attorney who signed a pleading, motion or other paper without reading the paper or making the determinations required by this subsection is representing a party under a contract made between a 3rd person and the party that requires that representation, and the 3rd person has actual knowledge that the pleading, motion or other paper is not well-grounded in fact or warranted by existing law or a good faith argument for the extension, modification or reversal of existing law or is used to harass, delay or increase the cost of litigation, the court may impose a similar appropriate sanction on the 3rd person.
802.05(1)(c)
(c) The requirement of a handwritten signature subscribing pleadings, motions or other papers filed in court may be satisfied by a duplicate, as defined in
s. 910.01 (4), if a handwritten signature appears on the original document and the signing party or his or her attorney retains the original document.
802.05(2)
(2) It is not a violation of
sub. (1) if a pleading includes as a party a person who is later dismissed from that action, and the party responsible for including that person acted reasonably in doing so and moves for or agrees to a dismissal of that person within a reasonable time after the party knew or should have known that the person was not a proper party to the action.
802.05 History
History: Sup. Ct. Order, 67 W (2d) 585, 622 (1975);
1975 c. 218;
1987 a. 256; Sup. Ct. Order, 161 W (2d) xvii (1991); Sup. Ct. Order, 171 W (2d) xix (1992).
Effective date note
Judicial Council Note, 1991: Pleadings, papers and other documents filed in court are required to be subscribed with the handwritten signatures of parties or counsel. Sub. (1) (c) is created to clarify that copies of the original papers may be filed in court with the same effect as originals. [Re Order eff. 7-1-91]
802.05 Annotation
This section does not allow a "good faith" defense, but requires affirmative duty of reasonable inquiry before filing; party prevailing on appeal in defense of award under this section is entitled to further award without showing that appeal itself is frivolous under 809.25(3). Riley v. Isaacson, 156 W (2d) 249, 456 W (2d) 619 (Ct. App. 1990).
802.05 Annotation
An unsigned summons served with a signed complaint is a technical defect which in the absence of prejudice does not deny the trial court personal jurisdiction. The purpose of this section is to place a personal obligation on the attorney that there are grounds for the contents of the pleading, which is satisfied by the signing of the complaint. Gaddis v. LaCrosse Products, Inc. 198 W (2d) 396, 542 NW (2d) 454 (1996).
802.06
802.06
Defenses and objection; when and how presented; by pleading or motion; motion for judgment on the pleadings. 802.06(1)(1)
When presented. A defendant shall serve an answer within 20 days after the service of the complaint upon the defendant. If a guardian ad litem is appointed for a defendant, the guardian ad litem shall have 20 days after appointment to serve the answer. A party served with a pleading stating a cross-claim against the party shall serve an answer thereto within 20 days after the service upon the party. The plaintiff shall serve a reply to a counterclaim in the answer within 20 days after service of the answer. The state or an agency of the state or an officer, employe or agent of the state in an action brought within the purview of
s. 893.82 or
895.46 shall serve an answer to the complaint or to a cross-claim or a reply to a counterclaim within 45 days after service of the pleading in which the claim is asserted. If any pleading is ordered by the court, it shall be served within 20 days after service of the order, unless the order otherwise directs. The service of a motion permitted under
sub. (2) alters these periods of time as follows, unless a different time is fixed by order of the court: if the court denies the motion or postpones its disposition until the trial on the merits, the responsive pleading shall be served within 10 days after notice of the court's action; or if the court grants a motion for a more definite statement, the responsive pleading shall be served within 10 days after the service of the more definite statement.
802.06(2)(a)(a) Every defense, in law or fact, except the defense of improper venue, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or 3rd-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion:
802.06(2)(a)5.
5. Untimeliness or insufficiency of service of summons or process.
802.06(2)(a)6.
6. Failure to state a claim upon which relief can be granted.
802.06(2)(a)10.
10. Another action pending between the same parties for the same cause.
802.06(2)(b)
(b) A motion making any of the defenses in
par. (a) 1. to
10. shall be made before pleading if a further pleading is permitted. Objection to venue shall be made in accordance with
s. 801.51. If a pleading sets forth a claim for relief to which the adverse party is not required to serve a responsive pleading, the adverse party may assert at the trial any defense in law or fact to that claim for relief. If on a motion asserting the defense described in
par. (a) 6. to dismiss for failure of the pleading to state a claim upon which relief can be granted, or on a motion asserting the defenses described in
par. (a) 8. or
9., matters outside of the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in
s. 802.08, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by
s. 802.08.
802.06(3)
(3) Judgment on the pleadings. After issue is joined between all parties but within time so as not to delay the trial, any party may move for judgment on the pleadings. Prior to a hearing on the motion, any party who was prohibited under
s. 802.02 (1m) from specifying the amount of money sought in the demand for judgment shall specify that amount to the court and to the other parties. If, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in
s. 802.08, and all parties shall be given reasonable opportunity to present all material made pertinent to the motion by
s. 802.08.
802.06(4)
(4) Preliminary hearings. The defenses specifically listed in
sub. (2), whether made in a pleading or by motion, the motion for judgment under
sub. (3) and the motion to strike under
sub. (6) shall be heard and determined before trial on motion of any party, unless the judge to whom the case has been assigned orders that the hearing and determination thereof be deferred until the trial. The hearing on the defense of lack of jurisdiction over the person or property shall be conducted in accordance with
s. 801.08.
802.06(5)
(5) Motion for more definite statement. If a pleading to which a responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading, the party may move for a more definite statement before interposing a responsive pleading. The motion shall point out the defects complained of and the details desired. If the motion is granted and the order of the court is not obeyed within 10 days after notice of the order or within such other time as the court may fix, the court may strike the pleading to which the motion was directed or make such order as it deems just.
