802.05 Annotation
Rule 11 motions should not be made or threatened for minor, inconsequential violations of the standards prescribed by subdivision (b). They should not be employed as a discovery device or to test the legal sufficiency or efficacy of allegations in the pleadings; other motions are available for those purposes. Nor should Rule 11 motions be prepared to emphasize the merits of a party's position, to exact an unjust settlement, to intimidate an adversary into withdrawing contentions that are fairly debatable, to increase the costs of litigation, to create a conflict of interest between attorney and client, or to seek disclosure of matters otherwise protected by the attorney-client privilege or the work-product doctrine. As under the prior rule, the court may defer its ruling (or its decision as to the identity of the persons to be sanctioned) until final resolution of the case in order to avoid immediate conflicts of interest and to reduce the disruption created if a disclosure of attorney-client communications is needed to determine whether a violation occurred or to identify the person responsible for the violation.
802.05 Annotation
The rule provides that requests for sanctions must be made as a separate motion, i.e., not simply included as an additional prayer for relief contained in another motion. The motion for sanctions is not, however, to be filed until at least 21 days (or such other period as the court may set) after being served. If, during this period, the alleged violation is corrected, as by withdrawing (whether formally or informally) some allegation or contention, the motion should not be filed with the court. These provisions are intended to provide a type of "safe harbor" against motions under Rule 11 in that a party will not be subject to sanctions on the basis of another party's motion unless, after receiving the motion, it refuses to withdraw that position or to acknowledge candidly that it does not currently have evidence to support a specified allegation. Under the former rule, parties were sometimes reluctant to abandon a questionable contention lest that be viewed as evidence of a violation of Rule 11; under the revision, the timely withdrawal of a contention will protect a party against a motion for sanctions.
802.05 Annotation
To stress the seriousness of a motion for sanctions and to define precisely the conduct claimed to violate the rule, the revision provides that the "safe harbor" period begins to run only upon service of the motion. In most cases, however, counsel should be expected to give informal notice to the other party, whether in person or by a telephone call or letter, of a potential violation before proceeding to prepare and serve a Rule 11 motion.
802.05 Annotation
As under former Rule 11, the filing of a motion for sanctions is itself subject to the requirements of the rule and can lead to sanctions. However, service of a cross motion under Rule 11 should rarely be needed since under the revision the court may award to the person who prevails on a motion under Rule 11 — whether the movant or the target of the motion — reasonable expenses, including attorney's fees, incurred in presenting or opposing the motion.
802.05 Annotation
The power of the court to act on its own initiative is retained, but with the condition that this be done through a show cause order. This procedure provides the person with notice and an opportunity to respond. The revision provides that a monetary sanction imposed after a court-initiated show cause order be limited to a penalty payable to the court and that it be imposed only if the show cause order is issued before any voluntary dismissal or an agreement of the parties to settle the claims made by or against the litigant. Parties settling a case should not be subsequently faced with an unexpected order from the court leading to monetary sanctions that might have affected their willingness to settle or voluntarily dismiss a case. Since show cause orders will ordinarily be issued only in situations that are akin to a contempt of court, the rule does not provide a "safe harbor" to a litigant for withdrawing a claim, defense, etc., after a show cause order has been issued on the court's own initiative. Such corrective action, however, should be taken into account in deciding what — if any — sanction to impose if, after consideration of the litigant's response, the court concludes that a violation has occurred.
802.05 Note
Subdivision (d). Rules 26(g) and 37 establish certification standards and sanctions that apply to discovery disclosures, requests, responses, objections, and motions. It is appropriate that Rules 26 through 37, which are specially designed for the discovery process, govern such documents and conduct rather than the more general provisions of Rule 11. Subdivision (d) has been added to accomplish this result.
802.05 Annotation
Rule 11 is not the exclusive source for control of improper presentations of claims, defenses, or contentions. It does not supplant statutes permitting awards of attorney's fees to prevailing parties or alter the principles governing such awards. It does not inhibit the court in punishing for contempt, in exercising its inherent powers, or in imposing sanctions, awarding expenses, or directing remedial action authorized under other rules or under 28 U.S.C. s. 1927. See Chambers v. NASCO, ___ U.S. ___ (1991). Chambers cautions, however, against reliance upon inherent powers if appropriate sanctions can be imposed under provisions such as Rule 11, and the procedures specified in Rule 11 — notice, opportunity to respond, and findings — should ordinarily be employed when imposing a sanction under the court's inherent powers. Finally, it should be noted that Rule 11 does not preclude a party from initiating an independent action for malicious prosecution or abuse of process.
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 Delavan,
210 Wis. 2d 239,
565 N.W.2d 209 (Ct. App. 1997),
96-1291.
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),
97-3447.
802.05 Annotation
The incorporation of this section by s. 814.025 allows 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),
97-3447.
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),
98-0885.
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,
00-0070.
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,
00-2416. See also Schaefer v. Riegelman, 2002 WI 18,
250 Wis. 2d 494, 639 N.W.2d N.W.2d 715,
00-2157 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,
00-2157.
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,
00-3490.
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,
02-0166.
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,
274 Wis. 2d 804,
683 N.W.2d 804,
03-2309.
802.05 Annotation
To avoid permitting prisoners to easily avoid the judicial screening requirement that is central to the purpose s. 802.05 (3), prisoners may not amend their initial pleadings as a matter of course under s. 802.09 (1). A prisoner's amendment of an initial pleading is subject to the judicial screening requirement of s. 802.05 (3), and a court must review the proposed amended pleading under that subsection before granting the prisoner leave to amend. Lindell v. Litscher, 2005 WI App 39,
280 Wis. 2d 159,
694 N.W.2d 396,
03-2477.
802.05 Annotation
If a pleading that does not conform to the subscription requirement of sub. (1) (a) is characterized as containing a fundamental defect that normally deprives the court of jurisdiction, that pleading is curable. Rabideau v. Stiller, 2006 WI App 155,
295 Wis. 2d 417,
720 N.W.2d 108,
05-2868.
802.05 Annotation
The Effect of Jandrt on Satellite Litigation. Geske & Gleisner. Wis. Law. May 2000.
802.05 Annotation
Frivolous Sanction Law in Wisconsin. Geske & Gleisner. Wis. Law. Feb. 2006.
802.05 Note
NOTE: The above case annotations refer to s. 802.05 as it existed prior to its repeal and recreation by SCO 03-06.
802.05 Annotation
This section is a procedural rule and procedural rules generally have retroactive application. However, this section, as affected by Supreme Court Order 03-06, is not to be applied retroactively when the new rule diminishes a contract, disturbs vested rights, or imposes an unreasonable burden on the party charged with complying with the new rule's requirements. Trinity Petroleum, Inc. v. Scott Oil Company, Inc. 2007 WI 88,
302 Wis. 2d 299,
735 N.W.2d 1,
05-2837.
802.05 Annotation
Sub. (3) (a) 1. requires the party seeking sanctions to first serve the motion on the potentially sanctionable party, who then has 21 days to withdraw or appropriately correct the claimed violation. The movant cannot file a motion for sanctions unless that time period has expired without a withdrawal or correction. A postjudgment sanctions motion does not comply with sub. (3) (a) 1. It would wrench both the language and the purpose of the rule to permit an informal warning to substitute for service of the motion. Ten Mile Investments, LLC v. Sherman, 2007 WI App 253,
306 Wis. 2d 799,
743 N.W.2d 442,
06-0353.
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 when a court dismisses an action or special proceeding under
s. 802.05 (4), a defendant shall serve an answer within 20 days after the service of the complaint upon the defendant. If a guardian ad litem is appointed for a defendant, the guardian ad litem shall have 20 days after appointment to serve the answer. A party served with a pleading stating a cross claim against the party shall serve an answer thereto within 20 days after the service upon the party. The plaintiff shall serve a reply to a counterclaim in the answer within 20 days after service of the answer. The state or an agency of the state or an officer, 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 20 days after service of the order, unless the order otherwise directs. If a defendant in the action is an insurance company, or if any cause of action raised in the original pleading, cross claim, or counterclaim is founded in tort, the periods of time to serve a reply or answer shall be 45 days. The service of a motion permitted under
sub. (2) alters these periods of time as follows, unless a different time is fixed by order of the court: if the court denies the motion or postpones its disposition until the trial on the merits, the responsive pleading shall be served within 10 days after notice of the court's action; or if the court grants a motion for a more definite statement, the responsive pleading shall be served within 10 days after the service of the more definite statement.
802.06(2)(a)(a) Every defense, in law or fact, except the defense of improper venue, to a claim for relief in any pleading, whether a claim, counterclaim, cross claim, or 3rd-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion:
802.06(2)(a)5.
5. Untimeliness or insufficiency of service of summons or process.
802.06(2)(a)6.
6. Failure to state a claim upon which relief can be granted.
802.06(2)(a)10.
10. Another action pending between the same parties for the same cause.
802.06(2)(b)
(b) A motion making any of the defenses in
par. (a) 1. to
10. shall be made before pleading if a further pleading is permitted. Objection to venue shall be made in accordance with
s. 801.51. If a pleading sets forth a claim for relief to which the adverse party is not required to serve a responsive pleading, the adverse party may assert at the trial any defense in law or fact to that claim for relief. If on a motion asserting the defense described in
par. (a) 6. to dismiss for failure of the pleading to state a claim upon which relief can be granted, or on a motion asserting the defenses described in
par. (a) 8. or
9., matters outside of the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in
s. 802.08, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by
s. 802.08.
802.06(3)
(3) Judgment on the pleadings. After issue is joined between all parties but within time so as not to delay the trial, any party may move for judgment on the pleadings. Prior to a hearing on the motion, any party who was prohibited under
s. 802.02 (1m) from specifying the amount of money sought in the demand for judgment shall specify that amount to the court and to the other parties. If, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in
s. 802.08, and all parties shall be given reasonable opportunity to present all material made pertinent to the motion by
s. 802.08.
802.06(4)
(4) Preliminary hearings. The defenses specifically listed in
sub. (2), whether made in a pleading or by motion, the motion for judgment under
sub. (3) and the motion to strike under
sub. (6) shall be heard and determined before trial on motion of any party, unless the judge to whom the case has been assigned orders that the hearing and determination thereof be deferred until the trial. The hearing on the defense of lack of jurisdiction over the person or property shall be conducted in accordance with
s. 801.08.
802.06(5)
(5) Motion for more definite statement. If a pleading to which a responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading, the party may move for a more definite statement before interposing a responsive pleading. The motion shall point out the defects complained of and the details desired. If the motion is granted and the order of the court is not obeyed within 10 days after notice of the order or within such other time as the court may fix, the court may strike the pleading to which the motion was directed or make such order as it deems just.
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 20 days after the service of the pleading upon the party 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. If a defendant in the action is an insurance company, if any cause of action raised in the original pleading, cross-claim, or counterclaim is founded in tort, or if the moving party is the state or an officer, agent, employee, or agency of the state, the 20-day time period under this subsection is increased to 45 days.
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; Sup. Ct. Order No.
03-06A, 2005 WI 86, 280 Wis. 2d xiii;
2005 a. 442;
2007 a. 97.
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).
802.06 Annotation
Pleading failure to secure proper jurisdiction, or alternatively failure to obtain proper service, was sufficient to challenge the sufficiency of a 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),
95-1789.
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 208,
565 N.W.2d 187 (Ct. App. 1997),
96-2782.
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),
98-1944.
802.06 Annotation
Sub. (2) (b) requires the court to notify parties of its intent to convert a motion to dismiss for failure to state a claim to one for summary judgment and to provide the parties a reasonable opportunity to present material made pertinent by the application of s. 802.08. CTI of Northeast Wisconsin, LLC v. Herrell, 2003 WI App 19,
259 Wis. 2d 756,
656 N.W.2d 794,
02-1881.
802.06 Annotation
Sub. (8) (b), as applied to certiorari proceedings in which there is no pretrial conference, allows a party who has unsuccessfully moved to dismiss on other grounds to still seek dismissal grounded on claims preclusion at any time before the court has considered the merits of the petitioner's claims. Barksdale v. Litscher, 2004 WI App 130,
275 Wis. 2d 493,
685 N.W.2d 493,
03-0841.
802.06 Annotation
The plaintiff is normally entitled to an evidentiary hearing when a defendant challenges personal jurisdiction, even if the plaintiff does not demonstrate that an evidentiary hearing is necessary. The burden of going forward with the evidence, as well as the burden of persuasion, on the issue of jurisdiction is on the plaintiff. There is no rule that the plaintiff's burden to prove prima facie the facts supporting jurisdiction must be met by affidavit or in any manner prior to the evidentiary hearing. Kavanaugh Restaurant Supply, Inc. v. M.C.M. Stainless Fabricating, Inc. 2006 WI App 236,
297 Wis. 2d 532,
724 N.W.2d 893,
06-0043.
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;
2007 a. 97.
802.07 Annotation
Section 806.02 (2) provides that the plaintiff may move for default judgment according to the demand of the complaint. This section gives no indication that the appellations "plaintiff" and "defendant" may be reversed for purposes of a counterclaim. Pollack v. Calimag,
157 Wis. 2d 222,
458 N.W.2d 591 (Ct. App. 1990).
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
When 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
In an automobile injury action by an injured party naming the driver of the other car and the injured party's own insurance company as defendants, the court was not competent to proceed on a default judgment motion by the insurer against the other defendant when the insurer had filed an answer, but no cross claim against the other defendant. A default judgment entered in favor of the insurer was void. Tridle v. Horn, 2002 WI App 215, 257 Wis. 2d. 529,
652 N.W.2d 418,
01-3372.
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).
802.07 Annotation
Landing in the A.B.C.G. Soup: The Compulsory Counterclaim Trap. Bach. Wis. Law. March 2006.
