802.08(4)
(4) When affidavits unavailable. Should it appear from the affidavits of a party opposing the motion that the party cannot for reasons stated present by affidavit facts essential to justify the party's opposition, the court may refuse the motion for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.
802.08(5)
(5) Affidavits made in bad faith. Should it appear to the satisfaction of the court at any time that any of the affidavits presented pursuant to this section is presented in bad faith or solely for the purpose of delay, the court shall forthwith order the party employing them to pay to the other party the amount of the reasonable expenses which the filing of the affidavits caused the other party to incur, including reasonable attorney fees.
802.08(6)
(6) Judgment for opponent. If it shall appear to the court that the party against whom a motion for summary judgment is asserted is entitled to a summary judgment, the summary judgment may be awarded to such party even though the party has not moved therefor.
802.08(7)
(7) Telephone hearings. Oral argument permitted on motions under this section may be heard as prescribed in
s. 807.13 (1).
802.08 History
History: Sup. Ct. Order, 67 W (2d) 585, 630 (1975);
1975 c. 218; Sup. Ct. Order, 82 W (2d) ix; Sup. Ct. Order, 141 W (2d) xix;
1987 a. 256; Sup. Ct. Order, 168 W (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
Respondents in appeals from orders denying summary judgment motion are invited to move for summary affirmance under s. 251.71, 1973 stats. [see s. 809.21]. Am. Orthodontics Corp. v. G. & H. Ins. 77 W (2d) 337, 253 NW (2d) 82.
802.08 Annotation
Where plaintiff had signed release, and where another illness subsequently developed, question of whether plaintiff consciously intended to disregard possibility that known condition could become aggravated was question of fact not to be determined on summary judgment. Krezinski v. Hay, 77 W (2d) 569, 253 NW (2d) 522.
802.08 Annotation
Summary judgment procedure is not authorized in proceedings for judicial review under ch. 227. Wis. Environmental Decade v. Public Service Comm. 79 W (2d) 161, 255 NW (2d) 917.
802.08 Annotation
Where insurance policy unambiguously excluded coverage relating to warranties, factual question whether implied warranties were made was immaterial and trial court abused discretion in denying insurer's summary judgment motion. Jones v. Sears Roebuck & Co. 80 W (2d) 321, 259 NW (2d) 70.
802.08 Annotation
Sub. (2) mandates more exacting appellate scrutiny of trial court's decision to grant or deny judgment. Wright v. Hasley, 86 W (2d) 572, 273 NW (2d) 319 (1979).
802.08 Annotation
See note to 807.05, citing Wilharms v. Wilharms, 93 W (2d) 671, 287 NW (2d) 779 (1980).
802.08 Annotation
Existence of new or difficult issue of law does not make summary judgment inappropriate. Maynard v. Port Publications, Inc. 98 W (2d) 555, 297 NW (2d) 500 (1980).
802.08 Annotation
Conviction for injury by conduct regardless of life does not establish injury was intentional or expected and entitle insurer to summary judgment on policy exclusion issue. Poston v. U.S. Fidelity & Guarantee Co. 107 W (2d) 215, 320 NW (2d) 9 (Ct. App. 1982).
802.08 Annotation
See note to 804.11, citing Bank of Two Rivers v. Zimmer, 112 W (2d) 624, 334 NW (2d) 230 (1983).
802.08 Annotation
Appellate court reviews trial court's decision by applying same standards and methods as did trial court. Green Spring Farms v. Kersten, 136 W (2d) 304, 401 NW (2d) 816 (1987).
802.08 Annotation
Where only issue before court requires expert testimony for resolution, trial court on summary judgment may determine whether party has made prima facie showing that it can, in fact, produce favorable testimony. Dean Medical Center v. Frye, 149 W (2d) 727, 439 NW (2d) 633 (Ct. App. 1989).
802.08 Annotation
See note to 48.13 citing In Interest of F.Q. 162 W (2d) 607, 470 NW (2d) 1 (Ct. App. 1991).
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).
802.08 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 W (2d) 209, 565 NW (2d) 187 (Ct. App. 1997).
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 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);
1997 a. 187.
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).
802.09 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 W (2d) 93, 579 NW(2d) 285 (Ct. App. 1998).
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).
802.10 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 W (2d) 1, 578 NW (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:
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.
