Chapter 802

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; 2017 a. 235.

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 sub. (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 sub. (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 an 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 sub. (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, Inc. 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 two answers are filed on its behalf by two different insurers and only one raises the defense. Honeycrest Farms, Inc. v. Brave Harvestore Systems, Inc., 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 claim preclusion at any time before the court has considered the merits of the petitioner’s claims. State ex rel. Barksdale v. Litscher, 2004 WI App 130, 275 Wis. 2d 493, 685 N.W.2d 801, 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.

802.06 Annotation Sub. (2) (b) serves as an exception to the summary judgment procedure laid out in s. 802.08. Sub. (2) (b) allows the circuit court to convert a defendant’s motion to dismiss for failure to state a claim into a summary judgment motion when the defendant has not filed an answer even though s. 802.08 requires that the pleadings be complete before a court can review a summary judgment motion. Alliance Laundry Systems LLC v. Stroh Die Casting Co., 2008 WI App 180, 315 Wis. 2d 143, 763 N.W.2d 167, 07-2857.

802.06 Annotation Sub. (2) (b) requires the court to provide both parties with reasonable notice that it will or might convert a motion to dismiss into a summary judgment motion, but it does not require the court to request additional briefs or affidavits. Notice depends on the facts in each case and need not state that the court will, in fact, convert. Alliance Laundry Systems LLC v. Stroh Die Casting Co., 2008 WI App 180, 315 Wis. 2d 143, 763 N.W.2d 167, 07-2857.

802.06 Annotation When the facts and circumstances of a pending lawsuit and a new lawsuit are the same, simply naming a different party in the new lawsuit is not enough to get around sub. (2) (a) 10. Such a situation leads to a waste of judicial resources and is simply nonsensical. RBC Europe, LTD v. Noack, 2014 WI App 33, 353 Wis. 2d 183, 844 N.W.2d 643, 13-1105.

802.06 Annotation An exception to the conversion-to-summary-judgment requirements under subs. (2) and (3) is adopted. Under the incorporation by reference doctrine, a court may consider a document attached to a motion to dismiss or for judgment on the pleadings without converting the motion into one for summary judgment if the document is referred to in the plaintiff’s complaint, is central to the plaintiff’s claim, and its authenticity has not been disputed. Soderlund v. Zibolski, 2016 WI App 6, 366 Wis. 2d 579, 874 N.W.2d 561, 14-2479.

802.06 Annotation To facilitate effective and efficient appellate review, a circuit court must properly identify the motion that is before it and structure its analysis under the correct, applicable standard. Alternatively, the circuit court should direct the movants to clarify under which type of dispositive motion they intend to proceed. Procedural posture matters. In many cases, it materially impacts the outcome of disputes. Andruss v. Divine Savior Healthcare Inc., 2022 WI 27, 401 Wis. 2d 368, 973 N.W.2d 435, 20-0202.

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. A.B.C.G. Enterprises v. First Bank Southeast, N.A., 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 Wisconsin Eau Claire, N.A. 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 Cross-claims are generally permissive in Wisconsin. Wisconsin Public Service Corp. v. Arby Construction, Inc., 2011 WI App 65, 333 Wis. 2d 184, 798 N.W.2d 715, 10-0878.

802.07 Annotation The general rule in Wisconsin is that when a defendant may interpose a counterclaim but fails to do so, the defendant is not precluded from maintaining a subsequent action on that claim. A.B.C.G. Enterprises, 184 Wis. 2d 465 (1994), establishes a narrow, common law exception to the permissive counterclaim rule as a means of reconciling the tension between that rule and claim preclusion. A counterclaim is compulsory only if claim preclusion would otherwise apply and a favorable judgment in the second action would nullify the judgment in the original action or impair rights established in the initial action. Hull v. Glewwe, 2019 WI App 27, 388 Wis. 2d 90, 931 N.W.2d 266, 17-2485. But see Teske v. Wilson Mutual Insurance Co., 2019 WI 62, 387 Wis. 2d 213, 928 N.W.2d 555, 17-1269.

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 Co., 32 F. Supp. 2d 1059 (1999).

802.07 Annotation Landing in A.B.C.G. Soup: The Compulsory Counterclaim Trap. Bach. Wis. Law. Mar. 2006.

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 xiii (1987); 1987 a. 256; Sup. Ct. Order, 168 Wis. 2d xxi (1992); 1993 a. 490; 1997 a. 254; 2005 a. 253; 2007 a. 97.

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 When the plaintiff had signed a release, and when 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 (1977).

802.08 Annotation Summary judgment procedure is not authorized in proceedings for judicial review under ch. 227. Wisconsin’s Environmental Decade, Inc. v. PSC, 79 Wis. 2d 161, 255 N.W.2d 917 (1977).

802.08 Annotation When 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 (1977).

802.08 Annotation Use of the mandatory language in sub. (2) that “judgment shall be rendered” means that trial courts do not have wide latitude in deciding summary judgment motions and that appeals of decisions to grant or deny summary judgment be given exacting scrutiny. Wright v. Hasley, 86 Wis. 2d 572, 273 N.W.2d 319 (1979).

802.08 Annotation When 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 did not establish that the injury was intentional or expected and did not entitle the insurer to summary judgment on a policy exclusion issue. Poston v. U.S. Fidelity & Guaranty 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 if an admission 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 When 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, S.C. 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. N.Q. v. Milwaukee County Department of Social Services, 162 Wis. 2d 607, 470 N.W.2d 1 (Ct. App. 1991).

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. Shirley J.C. v. Walworth County, 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 Stating a four-step methodology for determining and reviewing a summary judgment motion. The use of trial material to sustain a grant or denial of summary judgment is inconsistent with this methodology. Universal Die & Stampings, Inc. v. Justus, 174 Wis. 2d 556, 497 N.W.2d 797 (Ct. App. 1993).

802.08 Annotation When 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 Mutual Insurance 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 on appeal of a motion that was denied by the trial court. State v. 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 pleadings are considered. Schopper v. Gehring, 210 Wis. 2d 208, 565 N.W.2d 187 (Ct. App. 1997), 96-2782.

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, Inc. v. M&I Marshall & Ilsley Bank, 224 Wis. 2d 288, 592 N.W.2d 5 (Ct. App. 1998), 97-3029.

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, 99-0056.

802.08 Annotation Generally, review of a summary judgment is de novo, but, when a summary judgment is based on an equitable right, legal issues are reviewed de novo while equitable relief, which is discretionary with the trial court, will be overturned only if there is an absence of the exercise of discretion. Pietrowski v. Dufrane, 2001 WI App 175, 247 Wis. 2d 232, 634 N.W.2d 109, 00-2143.

802.08 Annotation Summary judgment procedure is inconsistent with, and unworkable in, ch. 345 forfeiture proceedings. State v. Schneck, 2002 WI App 239, 257 Wis. 2d 704, 652 N.W.2d 434, 02-0513.

802.08 Annotation Summary judgment is inapplicable in ch. 343 hearings. State v. Baratka, 2002 WI App 288, 258 Wis. 2d 342, 654 N.W.2d 875, 02-0770.

802.08 Annotation In the absence of an answer to a cross claim and in the absence of any other responsive pleadings, a court may deem facts alleged in the cross claim and submissions filed in connection with a summary judgment motion admitted for purposes of summary judgment. Daughtry v. MPC Systems, Inc., 2004 WI App 70, 272 Wis. 2d 260, 679 N.W.2d 808, 02-2424.

802.08 Annotation At summary judgment, an affidavit setting forth an expert’s opinion is evidence of a factual dispute as long as the opinion is expressed on a matter that is appropriate for expert opinion and the affiant is arguably an expert. Mettler v. Nellis, 2005 WI App 73, 280 Wis. 2d 753, 695 N.W.2d 861, 04-1216.

802.08 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.

802.08 Annotation Sub. (2) was amended in 1992 to preclude local rules and to provide a statewide remedy and uniformity of practice. A conflicting local rule was precluded by the uniform rule contained in sub. (2), and the circuit court improperly applied the law when the court relied exclusively upon the local rule in refusing to consider a party’s submissions. David Christensen Trucking & Excavating, Inc. v. Mehdian, 2006 WI App 254, 297 Wis. 2d 765, 726 N.W.2d 689, 05-2546.

802.08 Annotation When a trial court enters a scheduling order, it may, in its discretion, deviate from the requirements of sub. (2) for cause shown and upon just terms. There was no exercise of discretion when a standard attachment to a scheduling order recited local court rules at odds with the five-day rule of sub. (2). With regard to scheduling orders, trial courts that deviate from the statutory time requirements for responding to a motion for summary judgment should explain on the record why that deviation is necessary and appropriate. Hunter v. AES Consultants, Ltd., 2007 WI App 42, 300 Wis. 2d 213, 730 N.W.2d 184, 06-0872.

802.08 Annotation The circuit court erred when it sua sponte granted summary judgment when it failed to give the notice required by sub. (2). Larry v. Harris, 2008 WI 81, 311 Wis. 2d 326, 752 N.W.2d 279, 05-2935.

802.08 Annotation Scheduling orders may trump sub. (2). By contrast, local court rules may not trump the deadlines in sub. (2). A scheduling order that attempts to apply a void rule in conflict with sub. (2) by attaching it to the order is invalid. In the absence of some specific dispute, there is no need for the court to explain scheduling decisions on the record. Hefty v. Strickhouser, 2008 WI 96, 312 Wis. 2d 530, 752 N.W.2d 820, 06-1094.

802.08 Annotation Findings of fact are determinations by a court from the evidence of a case concerning the facts asserted by one party and denied by another. Summary judgment is only granted when there is no genuine issue as to any material fact, when facts are not being asserted by one party and denied by the other. Therefore, formal findings of fact are not part of the summary judgment calculus. Camacho v. Trimble Irrevocable Trust, 2008 WI App 112, 313 Wis. 2d 272, 756 N.W.2d 596, 07-1472.