802.06 Note
Judicial Council Note, 1988: Sub. (9) [created] allows oral arguments permitted on motions under this section to be heard by telephone conference. [Re Order effective Jan. 1, 1988]
802.06 Annotation
A motion under sub. (2) (f) usually will be granted only when it is quite clear that under no conditions can the plaintiff recover. Wilson v. Continental Insurance Cos.
87 Wis. 2d 310,
274 N.W.2d 679 (1979).
802.06 Annotation
Under sub. (2) (f), a claim should only be dismissed if it is clear from the complaint that under no conditions can the plaintiff recover. Morgan v. Pennsylvania General Ins. Co.
87 Wis. 2d 723,
275 N.W.2d 660 (1979).
802.06 Annotation
A plaintiff need not prima facie prove jurisdiction prior to evidentiary hearing under (4). Bielefeldt v. St. Louis Fire Door Co.
90 Wis. 2d 245,
279 N.W.2d 464 (1979).
802.06 Annotation
Since facts alleged in the complaint stated a claim for abuse of process, the complaint was improperly dismissed under sub. (2) (f) even though an abuse of process claim was not pleaded or argued in the trial court. Strid v. Converse,
111 Wis. 2d 418,
331 N.W.2d 350 (1983).
802.06 Annotation
Counsel's appearance and objection, affidavit and trial brief were adequate to raise issue of defective service of process; if not in form, in substance they were the equivalent of a motion under sub. (2). Honeycrest Farms, Inc. v. A. O. Smith Corp.
169 Wis. 2d 596,
486 N.W.2d 539 (Ct. App. 1992).
802.06 Annotation
Pleading failure to secure proper jurisdiction or alternatively failure to obtain proper service was sufficient to challenge sufficiency of summons and complaint served without proper authentication. Studelska v. Avercamp,
178 Wis. 2d 457,
504 N.W.2d 125 (Ct. App. 1993).
802.06 Annotation
Motions for sanctions under this section must be filed prior to the entry of judgment. Northwest Wholesale Lumber v. Anderson,
191 Wis. 2d 278,
528 N.W.2d 502 (Ct. App. 1995).
802.06 Annotation
A party does not waive the defense of lack of jurisdiction when 2 answers are filed on its behalf by 2 different insurers and only one raises the defense. Honeycrest Farms v. Brave Harvestore Systems,
200 Wis. 2d 256,
546 N.W.2d 192 (Ct. App. 1996).
802.06 Annotation
Trial courts have the authority to convert a motion to dismiss to a motion for summary judgment when matters outside the pleadings are considered. Schopper v. Gehring,
210 Wis. 2d 209,
565 N.W.2d 187 (Ct. App. 1997).
802.06 Annotation
A defendant may file a motion to dismiss for failure to state a claim after filing an answer. A defendant who raises the defenses of failure to state a claim or the statute of limitations in an answer does not forfeit the right to bring those defenses on for disposition by subsequent motion. Eternalist Foundation, Inc. v. City of Platteville,
225 Wis. 2d 759,
593 N.W.2d 84 (Ct. App. 1999).
802.07
802.07
Counterclaim and cross-claim. 802.07(1)
(1)
Counterclaim. A defendant may counterclaim any claim which the defendant has against a plaintiff, upon which a judgment may be had in the action. A counterclaim may or may not diminish or defeat the recovery sought by the opposing party. Except as prohibited by
s. 802.02 (1m), the counterclaim may claim relief exceeding in amount or different in kind from that sought in the pleading of the opposing party.
802.07(2)
(2) Counterclaim maturing or acquired after pleading. A claim which either matured or was acquired by the pleader after serving the pleading may, with the permission of the court, be presented as a counterclaim by supplemental pleading.
802.07(3)
(3) Cross claim. A pleading may state as a cross claim any claim by one party against a coparty if the cross claim is based on the same transaction, occurrence, or series of transactions or occurrences as is the claim in the original action or as is a counterclaim therein, or if the cross claim relates to any property that is involved in the original action. Except as prohibited by
s. 802.02 (1m), the cross claim may include a claim that the party against whom it is asserted is or may be liable to the cross claimant for all or part of a claim asserted in the action against the cross claimant.
802.07(4)
(4) Joinder of additional parties. Persons other than those made parties to the original action may be made parties to a counterclaim or cross-claim in accordance with
ss. 803.03 to
803.05.
802.07(5)
(5) Separate trials; separate judgments. If the court orders separate trials as provided in
s. 805.05 (2), judgment on a counterclaim or cross-claim may be rendered in accordance with
s. 806.01 (2) when the court has jurisdiction so to do, even if the claims of the opposing party have been dismissed or otherwise disposed of.
802.07 History
History: Sup. Ct. Order,
67 Wis. 2d 585, 628 (1975);
1975 c. 218; Sup. Ct. Order, 104 Wis. 2d xi;
1987 a. 256.
802.07 Annotation
A counterclaim based on contract must aver either satisfaction of any contractual condition precedent or an excuse, such as waiver, for not satisfying it. S & M Rotogravure Service, Inc. v. Baer,
77 Wis. 2d 454,
252 N.W.2d 913.
802.07 Annotation
A defendant may not join opposing counsel in counterclaims, but claims may be asserted against counsel after the principal action is completed. Badger Cab Co. v. Soule,
171 Wis. 2d 754,
492 N.W.2d 375 (Ct. App. 1992).
802.07 Annotation
This section does not contain mandatory counterclaim language but, res judicata bars claims arising from a single transaction that was the subject of a prior action and could have been raised by a counterclaim in the prior action if the action would nullify the initial judgment or impair rights established in the initial action. ABCG Enterprises v. First Bank Southeast,
184 Wis. 2d 465,
515 N.W.2d 904 (1994).
802.07 Annotation
Where collateral estoppel compels raising a counterclaim in an equitable action, that compulsion does not result in the waiver of the right to a jury trial. Norwest Bank v. Plourde,
185 Wis. 2d 377,
518 N.W.2d 265 (Ct. App. 1994).
802.07 Annotation
When a defendant obtains judgment on a counterclaim, the judgment extinguishes the defendant's right to recover on other counterclaims arising from the same transaction. Bankruptcy Estate of Lake Geneva Sugar Shack, Inc. v. General Star Indemnity,
32 F. Supp.2d 1059 (1999).
802.08
802.08
Summary judgment. 802.08(1)(1)
Availability. A party may, within 8 months of the filing of a summons and complaint or within the time set in a scheduling order under
s. 802.10, move for summary judgment on any claim, counterclaim, cross-claim, or 3rd party claim which is asserted by or against the party. Amendment of pleadings is allowed as in cases where objection or defense is made by motion to dismiss.
802.08(2)
(2) Motion. Unless earlier times are specified in the scheduling order, the motion shall be served at least 20 days before the time fixed for the hearing and the adverse party shall serve opposing affidavits, if any, at least 5 days before the time fixed for the hearing. 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. The judgment sought shall be rendered 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. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages.
802.08(3)
(3) Supporting papers. Supporting and opposing affidavits shall be made on personal knowledge and shall set forth such evidentiary facts as would be admissible in evidence. Copies of all papers or parts thereof referred to in an affidavit shall be attached thereto and served therewith, if not already of record. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. When a motion for summary judgment is made and supported as provided in this section, an adverse party may not rest upon the mere allegations or denials of the pleadings but the adverse party's response, by affidavits or as otherwise provided in this section, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against such party.
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 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
Where the plaintiff had signed a release, and where 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.
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 Wis. 2d 161,
255 N.W.2d 917.
802.08 Annotation
Where 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.
802.08 Annotation
Sub. (2) mandates more exacting appellate scrutiny of the trial court's decision to grant or deny judgment. Wright v. Hasley,
86 Wis. 2d 572,
273 N.W.2d 319 (1979).
802.08 Annotation
Where 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 does not establish that the injury was intentional or expected and 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 where 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
Where 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
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 Wis. 2d 504,
482 N.W.2d 84 (1992).
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
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 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 motion on appeal 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. 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.
802.09
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 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.
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.
802.09 Annotation
The trial court abused its discretion in prohibiting amendment to 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.
802.09 Annotation
Under sub. (2), a complaint will be treated as amended, even though no amendment has been requested, where 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 where 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
Where 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 s. 802.09 (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 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 Cas. Co. of Wisconsin,
117 Wis. 2d 187,
344 N.W.2d 108 (1984).
802.09 Annotation
"Interests of justice" determinations under (2) are discussed. 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).
802.10
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
66.0317 [
s. 66.0114] and
chs. 48,
102,
108,
227,
348,
767,
778,
799 and
812, and proceedings under
chs. 851 to
882.
802.10 Note
NOTE: The cross-reference to s. 66.0317 was changed pursuant to
1999 Wis. Act 150, section
672, which incorrectly indicated that s. 66.12 (1) was to be changed to s. 66.0317. Section 66.12 was renumbered to s. 66.0114 by Act 150, as shown here. Corrective legislation is pending.
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).
