802.08 Annotation
A moving party's own inconsistent pleadings, admissible during trial as an admission, may be used to raise an issue of material fact. Gouger v. Hardtke, 167 W (2d) 504, 482 NW (2d) 84 (1992).
802.08 Annotation
Summary judgment does not apply to cases brought under the criminal code. State v. Hyndman, 170 W (2d) 198, 488 NW (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 W (2d) 371, 493 NW (2d) 382 (Ct. App. 1992).
802.08 Annotation
In 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 W (2d) 733, 496 NW (2d) 637 (Ct. App. 1992).
802.08 Annotation
A party's affidavit which contradicted that same party's earlier deposition raised an issue of fact making summary judgment inappropriate. Wolski v. Wilson, 174 W (2d) 533, 497 NW (2d) 794 (Ct. App. 1993).
802.08 Annotation
Four step methodology for determining and reviewing summary judgment motion stated; use of trial material to sustain a grant or denial of summary judgment is inconsistent with this methodology. Universal Die & Stampings v. Justus, 174 W (2d) 556, 497 NW (2d) 797 (Ct. App. 1993).
802.08 Annotation
Where 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 W (2d) 457, 513 NW (2d) 690 (Ct. App. 1994).
802.08 Annotation
The court of appeals has authority to grant a summary judgment motion on appeal which was denied by the trial court. Interest of Courtney E. 184 W (2d) 592, 516 NW (2d) 422 (1994).
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 20 days after service of the amended pleading 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 W (2d) 585, 632 (1975);
1975 c. 218; Sup. Ct. Order, 82 W (2d) ix (1978); Sup. Ct. Order, 141 W (2d) xiii (1987).
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
Amendment should not be allowed 8 years after accident and 5 years beyond statute of limitations. Drehmel v. Radandt, 75 W (2d) 223, 249 NW (2d) 274.
802.09 Annotation
Trial court abused discretion in prohibiting amendment to pleading on 2nd day of trial to plead quantum meruit as alternative to substantial performance of contract. Tri-State Home Improvement Co. v. Mansavage, 77 W (2d) 648, 253 NW (2d) 474.
802.09 Annotation
Under (2), complaint will be treated as amended, even though no amendment has been requested, where proof has been submitted and accepted. Goldman v. Bloom, 90 W (2d) 466, 280 NW (2d) 170 (1979).
802.09 Annotation
Sub. (3) is identical to FRCP 15 (c). "Changing the party" includes adding a defendant where requirements of (3) are met. State v. One 1973 Cadillac, 95 W (2d) 641, 291 NW (2d) 626 (Ct. App. 1980).
802.09 Annotation
In products liability action, new cause of action for punitive damages brought after statute of limitations expired related back to date of filing original pleading. Wussow v. Commercial Mechanisms, Inc. 97 W (2d) 136, 293 NW (2d) 897 (1980).
802.09 Annotation
See note to 893.02, citing Lak v. Richardson-Merrell, Inc. 100 W (2d) 641, 302 NW (2d) 483 (1981).
802.09 Annotation
While circuit court was correct in holding that it had power to amend complaint on its own motion after presentation of evidence, court erred in not granting parties opportunity to present additional evidence on complaint as amended. State v. Peterson, 104 W (2d) 616, 312 NW (2d) 784 (1981).
802.09 Annotation
Amended pleading adding separate claim by different plaintiff related back to date of filing of original complaint. Korkow v. General Cas. Co. of Wisconsin, 117 W (2d) 187, 344 NW (2d) 108 (1984).
802.09 Annotation
"Interests of justice" determinations under (2) discussed. Zobel v. Fenendael, 127 W (2d) 382, 379 NW (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 W (2d) 421, 513 NW (2d) 681 (Ct. App. 1994).
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
66.12 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 W (2d) 585, 634 (1975);
1975 c. 218; Sup. Ct. Order, 82 W (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 W (2d) xiii (1987);
1993 a. 486; Sup. Ct. Order No.
95-04, 191 W (2d) xxi (1995).
802.10 Annotation
Trial court properly granted default judgment against party failing to appear at scheduling conference. Damage amount, however, was not supported by record. Gaertner v. 880 Corp., 131 W (2d) 492, 389 NW (2d) 59 (Ct. App. 1986).
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:
802.12(1)(a)1.
1. A neutral 3rd person is given the authority to render a decision that is legally binding.
802.12(1)(a)2.
2. It is used only with the consent of all of the parties.
802.12(1)(a)4.
4. A contract or the neutral 3rd person determines the applicability of the rules of evidence.
802.12(1)(b)
(b) "Direct negotiation" means a dispute resolution process that involves an exchange of offers and counteroffers by the parties or a discussion of the strengths and weaknesses or the merits of the parties' positions, without the use of a 3rd person.
802.12(1)(c)
(c) "Early neutral evaluation" means a dispute resolution process in which a neutral 3rd person evaluates brief written and oral presentations early in the litigation and provides an initial appraisal of the merits of the case with suggestions for conducting discovery and obtaining legal rulings to resolve the case as efficiently as possible. If all of the parties agree, the neutral 3rd person may assist in settlement negotiations.
802.12(1)(d)
(d) "Focus group" means a dispute resolution process in which a panel of citizens selected in a manner agreed upon by all of the parties receives abbreviated presentations from the parties, deliberates, renders an advisory opinion about how the dispute should be resolved and discusses the opinion with the parties.
802.12(1)(e)
(e) "Mediation" means a dispute resolution process in which a neutral 3rd person, who has no power to impose a decision if all of the parties do not agree to settle the case, helps the parties reach an agreement by focusing on the key issues in a case, exchanging information between the parties and exploring options for settlement.
802.12(1)(f)
(f) "Mini-trial" means a dispute resolution process that consists of presentations by the parties to a panel of persons selected and authorized by all of the parties to negotiate a settlement of the dispute that, after the presentations, considers the legal and factual issues and attempts to negotiate a settlement. Mini-trials may include a neutral advisor with relevant expertise to facilitate the process, who may express opinions on the issues.
802.12(1)(g)
(g) "Moderated settlement conference" means a dispute resolution process in which settlement conferences are conducted by one or more neutral 3rd persons who receive brief presentations by the parties in order to facilitate settlement negotiations and who may render an advisory opinion in aid of negotiation.
802.12(1)(h)
(h) "Nonbinding arbitration" means a dispute resolution process in which a neutral 3rd person is given the authority to render a nonbinding decision as a basis for subsequent negotiation between the parties after the parties present evidence and examine witnesses under the rules of evidence agreed to by the parties or determined by the neutral 3rd person.
802.12(1)(i)
(i) "Settlement alternative" means any of the following: binding arbitration, direct negotiation, early neutral evaluation, focus group, mediation, mini-trial, moderated settlement conference, nonbinding arbitration, summary jury trial.
802.12(1)(j)
(j) "Summary jury trial" means a dispute resolution process that meets all of the following conditions:
802.12(1)(j)1.
1. Attorneys make abbreviated presentations to a small jury selected from the regular jury list.
802.12(1)(j)2.
2. A judge presides over the summary jury trial and determines the applicability of the rules of evidence.
802.12(1)(j)3.
3. The parties may discuss the jury's advisory verdict with the jury.
802.12(1)(j)4.
4. The jury's assessment of the case may be used in subsequent negotiations.
802.12(2)(a)(a) A judge may, with or without a motion having been filed, upon determining that an action or proceeding is an appropriate one in which to invoke a settlement alternative, order the parties to select a settlement alternative as a means to attempt settlement. An order under this paragraph may include a requirement that the parties participate personally in the settlement alternative. Any party aggrieved by an order under this paragraph shall be afforded a hearing to show cause why the order should be vacated or modified. Unless all of the parties consent, an order under this paragraph shall not delay the setting of the trial date, discovery proceedings, trial or other matters addressed in the scheduling order or conference.
802.12(2)(b)
(b) The parties shall inform the judge of the settlement alternative they select and the person they select to provide the settlement alternative. If the parties cannot agree on a settlement alternative, the judge shall specify the least costly settlement alternative that the judge believes is likely to bring the parties together in settlement, except that unless all of the parties consent, the judge may not order the parties to attempt settlement through binding arbitration, nonbinding arbitration or summary jury trial or through more than one of the following: binding arbitration, early neutral evaluation, focus group, mediation, mini-trial, moderated settlement conference, nonbinding arbitration, summary jury trial.
802.12(2)(c)
(c) If the parties cannot agree on a person to provide the settlement alternative, the judge may appoint any person who the judge believes has the ability and skills necessary to bring the parties together in settlement.
802.12(2)(d)
(d) If the parties cannot agree regarding the payment of a provider of a settlement alternative, the judge shall direct that the parties pay the reasonable fees and expenses of the provider of the settlement alternative. The judge may order the parties to pay into an escrow account an amount estimated to be sufficient to pay the reasonable fees and expenses of the provider of the settlement alternative.
802.12(3)
(3) Actions affecting the family. In actions affecting the family under
ch. 767, all of the following apply:
802.12(3)(a)
(a) All settlement alternatives are available except focus group, mini-trial and summary jury trial.
802.12(3)(b)
(b) If a guardian ad litem has been appointed, he or she shall be a party to any settlement alternative regarding custody, physical placement, visitation rights, support or other interests of the ward.
802.12(3)(c)
(c) If the parties agree to binding arbitration, the court shall, subject to
ss. 788.10 and
788.11, confirm the arbitrator's award and incorporate the award into the judgment or postjudgment modification order with respect to all of the following:
