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 Wis. 2d 585, 619 (1975);
1975 c. 218.
802.03 Annotation
Sub. (8) subjects claims lacking averments of time to motions for a more definite statement and not to motions to dismiss for failure to state a claim. Schweiger v. Loewi & Co., Inc.
65 Wis. 2d 56,
221 N.W.2d 882 (1974).
802.03 Annotation
The "American rule" of absolute judicial immunity from liability for libel or slander provides that writings made by an attorney of record in a pending lawsuit apply in this state if the statements made are relevant to the matters being considered and are made in a procedural context recognized as affording absolute privilege. Converters Equip. Corp. v. Condes Corp.
80 Wis. 2d 257,
258 N.W.2d 712 (1977).
802.03 Annotation
When a libel action is based on conduct rather than words, sub. (6) is not applicable. Starobin v. Northridge Lakes Development Co.
94 Wis. 2d 1,
287 N.W.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 Wis. 2d 115,
531 N.W.2d 54 (1995).
802.03 Annotation
Sub. (2) requires specification of the time, place, and content of an alleged false representation. Allegations were too general that did not specify the particular individuals who made the representations and did not specify where, when, and to whom the representations were made. Friends of Kenwood v. Green, 2000 WI App 217,
239 Wis. 2d 78,
619 N.W.2d 271,
00-0680.
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 Wis. 2d 585, 621 (1975);
1975 c. 218; Sup. Ct. Order, 171 Wis. 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(3)(a)(a) A court shall review the initial pleading as soon as practicable after the action or special proceeding is filed with the court if the action or special proceeding is commenced by a prisoner, as defined in
s. 801.02 (7) (a) 2.
802.05(3)(b)
(b) The court may dismiss the action or special proceeding under
par. (a) without requiring the defendant to answer the pleading if the court determines that the action or special proceeding meets any of the following conditions:
802.05(3)(b)2.
2. Is used for any improper purpose, such as to harass, to cause unnecessary delay or to needlessly increase the cost of litigation.
802.05(3)(b)3.
3. Seeks monetary damages from a defendant who is immune from such relief.
802.05(3)(b)4.
4. Fails to state a claim upon which relief may be granted.
802.05(3)(c)
(c) If a court dismisses an action or special proceeding under
par. (b), the court shall notify the department of justice or the attorney representing the political subdivision, as appropriate, of the dismissal by a procedure developed by the director of state courts in cooperation with the department of justice.
802.05(3)(d)
(d) The dismissal of an action or special proceeding under
par. (b) does not relieve the prisoner from paying the full filing fee related to that action or special proceeding.
802.05 History
History: Sup. Ct. Order,
67 Wis. 2d 585, 622 (1975);
1975 c. 218;
1987 a. 256; Sup. Ct. Order, 161 Wis. 2d xvii (1991); Sup. Ct. Order, 171 Wis. 2d xix (1992);
1997 a. 133.
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 imposes an affirmative duty of reasonable inquiry before filing. A party prevailing on appeal in defense of an award under this section is entitled to a further award without showing that the appeal itself is frivolous under s. 809.25 (3). Riley v. Isaacson,
156 Wis. 2d 249,
456 N.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. This section places a personal obligation on the attorney to assure 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 Wis. 2d 396,
542 N.W.2d 454 (1996),
94-2121.
802.05 Annotation
The return of a writ of certiorari is an "other document" under this section. Attorney failure to verify its correctness before signing the return was ground for sanctions. State ex rel. Campbell v. Town of Delevan,
210 Wis. 2d 240,
565 N.W.2d 209 (Ct. App. 1997).
802.05 Annotation
In determining the reasonableness of an attorney's inquiry, a court must consider: 1) the amount of time the attorney had to investigate the claims; 2) the extent to which the attorney had to rely on the client for the underlying facts; 3) whether the case was accepted from another attorney; 4) the complexity of the facts; and 5) whether discovery would benefit the factual record. At minimum some affirmative investigation is required. Belich v. Szymaszek,
224 Wis. 2d 419,
592 N.W.2d 254 (Ct. App. 1999).
802.05 Annotation
The incorporation of this section by s. 814.025 allows the the trial court on a motion filed under s. 814.025 to award attorney fees based on both sections. Belich v. Szymaszek,
224 Wis. 2d 419,
592 N.W.2d 254 (Ct. App. 1999).
802.05 Annotation
A plaintiff need not as a matter of course exhaust outside sources of information before embarking on formal discovery. However, a plaintiff may not rely on formal discovery to establish the factual basis of its cause of action, thereby escaping the mandates of ss. 802.05 and 814.025, when the required factual basis could be established without discovery. Jandrt v. Jerome Foods, Inc.
227 Wis. 2d 531,
597 N.W.2d 744 (1999).
802.05 Annotation
The standard for determining whether a claim may be dismissed under sub. (3) (b) 4. is the same standard applied in a normal civil case for failure to state a claim upon which relief can be granted. A case should be dismissed only if it is quite clear that under no circumstances can a plaintiff recover. State ex rel. Adell v. Smith, 2001 WI App 168,
247 Wis. 2d 260,
633 N.W.2d 231.
802.05 Annotation
A stamped reproduction of a signature does not satisfy s. 801.09 (3), and correcting the signature a year after receiving notice of the defect is not timely under sub. (1) (a). The error must be promptly corrected, or else the certification statute and the protection it was intended to afford is rendered meaningless. Novak v. Phillips, 2001 WI App 156,
246 Wis. 2d 673,
631 N.W.2d 635. See also Schaefer v. Riegelman, 2002 WI 18,
250 Wis. 2d 494, 639 N.W.2d N.W.2d 715 reversing the holding of Novak that the error was technical and not fundamental.
802.05 Annotation
A summons and complaint signed by an attorney not licensed in the state contained a fundamental defect that deprived the circuit court of jurisdiction even though the signature was made on behalf and at the direction of a licensed attorney. Schaefer v. Riegelman, 2002 WI 18,
250 Wis. 2d 494, 639 N.W.2d N.W.2d 715.
802.05 Annotation
The failure to sign a notice of appeal can be corrected and does not compel immediate dismissal. State v. Seay, 2002 WI App 37,
250 Wis. 2d 761,
641 N.W.2d 437.
802.05 Annotation
The handwritten signature on a summons and complaint of an attorney of record who had been suspended from the practice of law was a fundamental defect. The defect was not cured when an amended complaint was filed with new counsel's signature but when no amended or corrected summons was ever filed. Town of Dunkirk v. City of Stoughton, 2002 WI App 280,
258 Wis. 2d 805,
654 N.W.2d 488.
802.05 Annotation
The circuit court's sua sponte dismissal of a petition for a writ of certiorari did not violate the right to due process or equal protection. Due process was satisfied because of constructive notice under sub. (3) (b), together with post-dismissal procedures available to the prisoner. Equal protection was satisfied because the initial pleading review procedure satisfied the rational basis test. Schatz v. McCaughtry, 2003 WI 80,
263 Wis. 2d 83,
664 N.W.2d 596,
01-0793.
802.05 Annotation
When petitioners and their counsel knew events related in their petition had not occurred when the petition was signed and sworn to and had not occurred when they filed the petition with the court, the trial court could reasonably decide that constituted a violation of the obligation to make a reasonable inquiry to insure that their petition was well-grounded in fact. The court properly rejected their rationale that the event did come about as expected. Robinson v. Town of Bristol, 2003 WI App 97,
264 Wis. 2d 318,
667 N.W.2d 14,
02-1247.
802.05 Annotation
Sub. (1) expressly authorizes sanctions against a represented client who has not signed a pleading and does not require the signing attorney to personally have the improper purpose. Lack of evidence that a signing attorney was or should have been aware the client was using the complaint for an improper purpose does not result in the conclusion that the complaint was not used for an improper purpose, but is relevant to whom to sanction. Wisconsin Chiropractic Association v. Chiropractic Examining Board, 2004 WI App 30,
269 Wis. 2d 837,
676 N.W.2d 580,
03-0933.
802.05 Annotation
In order to confer jurisdiction on the court of appeals, a notice of appeal filed by counsel must contain the handwritten signature of an attorney authorized to practice law in Wisconsin. Counsel cannot delegate the duty to affix a signature on a notice of appeal to a person not authorized to practice law in Wisconsin. When a notice of appeal is not signed by an attorney when an attorney is required, the notice of appeal is fundamentally defective and cannot confer jurisdiction. Brown v. MR Group, LLC 2004 WI App 121, ___ Wis. 2d ___, ___ N.W.2d ___,
03-2309.
802.05 Annotation
The Effect of Jandrt on Satellite Litigation. Geske & Gleisner. Wis. Law. May 2000.
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. Except as provided in
sub. (1m) or when a court dismisses an action or special proceeding under
s. 802.05 (3), a defendant shall serve an answer within 45 days after the service of the complaint upon the defendant. Except as provided in
sub. (1m), if a guardian ad litem is appointed for a defendant, the guardian ad litem shall have 45 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 45 days after the service upon the party. The plaintiff shall serve a reply to a counterclaim in the answer within 45 days after service of the answer. The state or an agency of the state or an officer, employee or agent of the state 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 45 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(1m)
(1m) Enforcement of lien or security interest. If the proceeding is to foreclose or otherwise enforce a lien or security interest, the defendant or guardian ad litem shall serve an answer within 20 days after the service of the complaint upon the defendant or 20 days after appointment of the guardian ad litem.
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.
802.06(6)
(6) Motion to strike. Upon motion made by a party before responding to a pleading or, if no responsive pleading is permitted upon motion made by a party within 45 days after the service of the pleading upon the party, or within 20 days after the service if the proceeding is to foreclose or otherwise enforce a lien or security interest, or upon the court's own initiative at any time, the court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, scandalous or indecent matter.
802.06(7)
(7) Consolidation of defenses in motions. A party who makes a motion under this section may join with it any other motions herein provided for and then available to the party. If a party makes a motion under this section but omits therefrom any defense or objection then available to the party which this section permits to be raised by motion, the party shall not thereafter make a motion based on the defense or objection so omitted, except a motion as provided in
sub. (8) (b) to
(d) on any of the grounds there stated.
802.06(8)
(8) Waiver or preservation of certain defenses. 802.06(8)(a)(a) A defense of lack of jurisdiction over the person or the property, insufficiency of process, untimeliness or insufficiency of service of process or another action pending between the same parties for the same cause is waived only if any of the following conditions is met:
802.06(8)(a)1.
1. The defense is omitted from a motion in the circumstances described in
sub. (7).
802.06(8)(a)2.
2. The defense is neither made by motion under this section nor included in a responsive pleading.
802.06(8)(b)
(b) A defense of failure to join a party indispensable under
s. 803.03 or of res judicata may be made in any pleading permitted or ordered under
s. 802.01 (1), or by motion before entry of the final pretrial conference order. A defense of statute of limitations, failure to state a claim upon which relief can be granted, and an objection of failure to state a legal defense to a claim may be made in any pleading permitted or ordered under
s. 802.01 (1), or by a motion for judgment on the pleadings, or otherwise by motion within the time limits established in the scheduling order under
s. 802.10 (3).
802.06(8)(c)
(c) If it appears by motion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.
802.06(8)(d)
(d) A defense of lack of capacity may be raised within the time permitted under
s. 803.01.
802.06(9)
(9) Telephone hearings. Oral argument permitted on motions under this section may be heard as prescribed in
s. 807.13 (1).
802.06 History
History: Sup. Ct. Order,
67 Wis. 2d 585, 623 (1975);
1975 c. 218; Sup. Ct. Order, 73 Wis. 2d xxxi; Sup. Ct. Order, 82 Wis. 2d ix;
1977 c. 260;
1977 c. 447 ss.
196,
210;
1979 c. 110 ss.
51,
60 (7);
1979 c. 323 s.
33;
1981 c. 390 s.
252; Sup. Ct. Order, 112 Wis. 2d xi (1983);
1983 a. 228 s.
16; Sup. Ct. Order, 141 Wis. 2d xiii (1987);
1987 a. 256;
1993 a. 213; Sup. Ct. Order No.
95-04, 191 Wis. 2d xxi (1995);
1995 a. 225,
411;
1997 a. 133,
187;
1999 a. 32;
2001 a. 16.
802.06 Note
Judicial Council Committee's Note, 1976: Subs. (2) (e) and (8) make clear that, unless waived, a motion can be made to claim as a defense lack of timely service within the 60 day period that is required by s. 801.02 to properly commence an action. See also s. 893.39. Defenses under sub. (8) cannot be raised by an amendment to a responsive pleading permitted by s. 802.09 (1). [Re Order effective Jan. 1, 1977]
802.06 Note
Judicial Council Committee's Note, 1977: Sub. (1) which governs when defenses and objections are presented, has been amended to delete references to the use of the scheduling conference under s. 802.10 (1) as the use of such a scheduling procedure is now discretionary rather than mandatory. The time periods under s. 802.06 are still subject to modification through the use of amended and supplemental pleadings under s. 802.09, the new calendaring practice under s. 802.10, and the pretrial conference under s. 802.11. [Re Order effective July 1, 1978]
802.06 Note
Judicial Council Note, 1983: Sub. (1) is amended by applying the extended response time for state agencies, officers and employees to state agents. The extended time is intended to allow investigation of the claim by the department of justice to determine whether representation of the defendant by the department is warranted under s. 893.82 or 895.46, Stats. [Re Order effective July 1, 1983]
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) [now (2) (a) 6] usually will be granted only when it is quite clear that under no condition 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) [now (2) (a) 6.], a claim should only be dismissed if it is clear from the complaint that under no condition can the plaintiff recover. Morgan v. Pennsylvania General Insurance Co.
87 Wis. 2d 723,
275 N.W.2d 660 (1979).
802.06 Annotation
A plaintiff need not prima facie prove jurisdiction prior to a evidentiary hearing under sub. (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) [now (2) (a) 6.] 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 the issue of defective service of process. If not in form, in substance those actions 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).
