802.09 Annotation "Changing the party" under sub. (3) can mean: 1) substitution of a new defendant for the present defendant; 2) addition of a defendant; 3) changing the stated capacity of the defendant; or 4) changing a misdescription or misnaming of the defendant. To add a party there must have existed a mistake concerning the identity of the proper party being added when the original pleading was filed. Identity includes an individual's name and physical characteristics that distinguish that person from another. Confusion about a person's role in a negligent act is not a question of identity and an amendment to include that person does not relate back. Estate of Hegarty v. Beauchaine, 2001 WI App 300, 249 Wis. 2d 142, 638 N.W.2d 355, 00-2144.

802.09 Annotation Absent a showing of prejudice, the trial court did not erroneously exercise its discretion by sua sponte amending the pleadings to apply the evidence before it. Schultz v. Trascher, 2002 WI App 4, 249 Wis. 2d 722, 640 N.W.2d 130, 00-3182.

802.09 Annotation The second sentence of sub. (3) refers only to a party against whom a claim is asserted and is not applicable in deciding under what circumstances a court may properly allow an amendment adding a plaintiff to relate back. Gross v. Woodman's Food Market, Inc. 2002 WI App 295, 259 Wis. 2d 181, 655 N.W.2d 718, 01-1746.

802.09 Annotation "At any stage of the action" in sub. (1) is broad enough to include one week after a motion for summary judgment is granted. For a motion to amend a complaint filed after a motion for summary judgment has been granted, the party seeking to amend must present a reason for granting the motion that is sufficient to overcome the value of the finality of judgment. Why the party has not acted sooner, the length of time since the filing of the original complaint, the number and nature of prior amendments, and the nature of the proposed amendment are all relevant considerations, as is the effect on the defendant. Mach v. Allison, 2003 WI App 11, 259 Wis. 2d 686, 656 N.W.2d 766, 02-0928.

802.09 Annotation If the original pleading was filed within the statute of limitations and the conditions of sub. (3) are met, the fact that a statute of limitations has expired between the filing of the summons and complaint and the motion to amend is not a reason to deny the motion. Town of Campbell v. City of La Crosse, 2003 WI App 247, 268 Wis. 2d 253, 673 N.W.2d 696, 02-2541.

802.09 Annotation Despite being named in the original action, because a defendant was never served in the original action, that defendant could not have been a party to the original action. By including the defendant in the amended complaint, the plaintiffs added a new party, which runs afoul of the relation back provisions of sub. (3). When the statute of limitations on the claim expired prior to filing the amended claim, the claim was time barred. Bartels v. Rural Mutual Insurance, Co. 2004 WI App 166, 275 Wis. 2d 730, 687 N.W.2d 84, 03-3393.

802.09 Annotation The circuit court erroneously exercised its discretion by granting an after-verdict motion to amend the pleadings to include the plaintiff's new claim. There was no express or implied consent by the defendants to try the issues raised by the claim, and the circuit court did not properly apply the necessary balancing test when it allowed the amendment of the pleadings. Hess v. Fernandez, 2005 WI 19, 278 Wis. 2d 283, 692 N.W.2d 655, 03-0327.

802.09 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.

802.09 Annotation When the plaintiff timely named a defendant, who had been a predecessor company's employee, and an unknown defendant in a complaint, she did not give the successor company, who had never employed the named defendant, adequate notice that it would have to investigate and defend against her claims. Plaintiff's theory that their was sufficient constructive notice to the successor company to meet the notice requirements of sub. (3) failed. Dakin v. Marciniak, 2005 WI App 67, 280 Wis. 2d 491, 695 N.W.2d 867, 04-0754.

802.09 Annotation Filing a new action is not an alternate way to amend a complaint. A lawsuit may be dismissed solely because there is already another action pending between the same parties for the same cause under s. 802.06 (2) (a) 10. A party may not circumvent a ruling it does not like in one case by filing a new action unless the second action is based on claims that could not have been brought in the first action. Aon Risk Services, Inc. v. Liebenstein, 2006 WI App 4, 289 Wis. 2d 127, 710 N.W.2d 175, 04-2163. See also Barricade Flasher Service, Inc. v. Wind Lake Auto Parts, Inc. 2011 WI App 162, 338 Wis. 2d 144, 807 N.W.2d 697, 11-0064.

802.09 Annotation In sub. (2), "tried" requires a trial. Arbitration is not a trial and an amendment to conform to evidence produced in arbitration is not allowed. Thom v. OneBeacon Insurance Company, 2007 WI App 123, 300 Wis. 2d 607, 731 N.W.2d 657, 06-1617.

802.09 Annotation Plaintiff's amended claim did not relate back under sub. (3) when the plaintiff passenger's original claim was against the insurer of the driver of the vehicle for coverage under an underinsured motorist provision for the negligence of a 3rd-party driver and the amended claim was against the same insurer under the same policy for the negligence of the insurer's insured. Thom v. OneBeacon Insurance Company, 2007 WI App 123, 300 Wis. 2d 607, 731 N.W.2d 657, 06-1617.

802.09 Annotation Once the circuit court issued an order dismissing a complaint in its entirety and the plaintiff appealed that final order, the circuit court no longer had jurisdiction over the case. The court of appeals decision to reverse and remand would have restored the circuit court's jurisdiction if the decision had not been appealed, but when the defendant petitioned the supreme court and was granted review, the court of appeals also lost jurisdiction. When the supreme court reversed the court of appeals affirming the circuit court's dismissal, neither the circuit court nor the court of appeals had authority to grant leave to amend the complaint without a clear directive from the supreme court. Tietsworth v. Harley-Davidson, Inc. 2007 WI 97, 303 Wis. 2d 94, 735 N.W.2d 418, 04-2655.

802.09 Annotation In the absence of a remand order in the mandate line or some other clear directive from the appellate court ultimately deciding the appeal, a trial court whose judgment or final order has been affirmed by the appellate court on the merits has no authority to reopen the case for an amended complaint. Tietsworth v. Harley-Davidson, Inc. 2007 WI 97, 303 Wis. 2d 94, 735 N.W.2d 418, 04-2655.

802.09 Annotation To amend a pleading within 6 months of when the original summons and complaint are filed, a party must only serve the amended pleading upon the parties within that time frame. The amended pleading must then be filed within a reasonable time after service. Schuett v. Hanson, 2007 WI App 226, 305 Wis. 2d 729, 741 N.W.2d 292, 06-3014.

802.09 Annotation Despite the fact that additional plaintiffs added by an amended complaint were making the same legal claims against the defendant, that did not give the defendant sufficient notice as to the specific factual occurrences with respect to the additional victims or any notice that these victims would even be making a claim for their injuries. As such, the amended complaint adding the plaintiffs did not relate back to the original complaint. Barnes v. WISCO Hotel Group, 2009 WI App 72, 318 Wis. 2d 537, 767 N.W.2d 352, 08-1884.

802.09 Annotation Relation back of an amendment to add a party depends on what the party to be added knew or should have known, not on the plaintiff's knowledge or timeliness in seeking to amend the pleading. A prospective defendant who legitimately believed that the limitations period had passed without any attempt to sue him or her has a strong interest in repose. But repose would be a windfall for a prospective defendant who understood, or who should have understood, that he or she escaped suit during the limitations period only because the plaintiff misunderstood a crucial fact about his or her identity. Tews v. NHI, LLC, 2010 WI 137, 330 Wis. 2d 389, 793 N.W.2d 860, 09-0828.

802.09 Annotation When the plaintiff's original complaint asserted claims against a roller rink business but did not assert any claims against the building owner, the building owner should not have expected to be added as a defendant pursuant to sub. (3) because it had no role in owning, operating, or managing the rink business. For this same reason, the plaintiff did not make a "mistake" with respect to the addition of the building owner as the plaintiff knew that the business operator was a separate entity from the building owner for nearly a year before the statute of limitations expired. As such, the plaintiff's claim against the building owner did not relate back to the original complaint. Wiley v. M.M.N. Laufer Family Limited Partnership, 2011 WI App 158, 338 Wis. 2d 178, 807 N.W.2d 236, 10-2789.

802.10(1)(1) Application. This section applies to all actions and special proceedings except appeals taken to circuit court; actions seeking the remedy available by certiorari, habeas corpus, mandamus, prohibition, and quo warranto; actions in which all defendants are in default; provisional remedies; and actions under ss. 49.90 and s. 66.0114 and chs. 48, 54, 102, 108, 227, 348, 767, 778, 799 and 812, and proceedings under chs. 851 to 882.

802.10(3) (3) Scheduling and planning. Except in categories of actions and special proceedings exempted under sub. (1), the circuit court may enter a scheduling order on the court's own motion or on the motion of a party. The order shall be entered after the court consults with the attorneys for the parties and any unrepresented party. The scheduling order may address any of the following:

802.10(3)(e) (e) The time, not more than 30 days after entry of the order, to determine the mode of trial, including a demand for a jury trial and payment of fees under s. 814.61 (4).

802.10(3)(f) (f) The limitation, control and scheduling of depositions and discovery, including the identification and disclosures of expert witnesses, the limitation of the number of expert witnesses and the exchange of the names of expert witnesses.