Chapter 802

802.02 Annotation A claim for punitive damages on a tort claim is subject to sub. (1m) (a). A demand for a specific amount in violation of sub. (1m) (a) is a nullity. Apex Electronics Corp. v. Gee, 217 Wis. 2d 378, 577 N.W.2d 23 (1998), 97-0353.

802.02 Annotation The effect of the court striking a defendant’s answer is that the defendant failed to deny the plaintiff’s allegations and, therefore, is deemed to have admitted them. An insured’s answers do not inure to an insurer’s benefit. Such a proposition is contrary to the direct action statute, s. 632.24. Estate of Otto v. Physicians Insurance Co. of Wisconsin, 2007 WI App 192, 305 Wis. 2d 198, 738 N.W.2d 599, 06-1566.

802.02 Annotation Affirmed. 2008 WI 78, 311 Wis. 2d 84, 751 N.W.2d 805, 06-1566.

802.02 Annotation The plain language of sub. (3) indicates that affirmative defenses, except the ten enumerated defenses in s. 802.06 (2) (a), must be raised in a responsive pleading. Lentz, 195 Wis. 2d 457 (1995), is overruled because it allows a defendant to initially raise by motion an affirmative defense not listed in s. 802.06 (2). Maple Grove Country Club Inc. v. Maple Grove Estates Sanitary District, 2019 WI 43, 386 Wis. 2d 425, 926 N.W.2d 184, 16-2296.

802.02 Annotation Data Key Partners, 2014 WI 86, did not create a new, heightened pleading standard in this state. That pleading standard is consistent with the pleading standard in Strid, 111 Wis. 2d 418 (1983). Cattau v. National Insurance Services of Wisconsin, Inc., 2019 WI 46, 386 Wis. 2d 515, 926 N.W.2d 756, 16-0493.

802.02 Annotation A complaint’s success does not depend on accurate labeling, but that does not mean a court may treat causes of action and remedies as if they are the same thing. A cause of action is distinguished from a remedy which is the means or method whereby the cause of action is effectuated. This distinction is important, especially at the summary judgment stage, because the court must determine whether the alleged facts comprise one or more causes of action. Tikalsky v. Friedman, 2019 WI 56, 386 Wis. 2d 757, 928 N.W.2d 502, 17-0170.

802.02 Annotation Under sub. (5) (b), a party may plead claims for relief in the alternative. Claims pleaded in the alternative need not be consistent with one another. Nevertheless, a plaintiff may recover under only one of those claims. If there is a contract between the parties, the plaintiff may recover in contract but not in equity. In this case, when a contract existed and the jury awarded damages for its breach, the plaintiff could not also collect damages for unjust enrichment based on the same underlying conduct or subject matter. Mohns Inc. v. BMO Harris Bank National Ass’n, 2021 WI 8, 395 Wis. 2d 421, 954 N.W.2d 339, 18-0071.

802.02 Annotation Sub. (5) (b), which allows parties to plead inconsistent claims in the alternative, provides no cover to a party asserting misrepresentation claims in the alternative to its contract claims because, when the economic loss doctrine applies, it limits transacting parties to pursuing contractual remedies for economic losses, and precludes such parties from pursuing any tort claims that might otherwise be available but for the doctrine. Ripp Distributing Co. v. Ruby Distribution LLC, 2024 WI App 24, 411 Wis. 2d 630, 5 N.W.3d 930, 23-0778.

802.02 Annotation Threshold Issues in State Court Civil Litigation. Hoffer. Wis. Law. Jan. 2019.

802.02 Annotation What Is Wisconsin’s Pleading Standard? Nusslock. Wis. Law. Sept. 2019.

802.025 802.025 Pleadings, discovery, and damages in certain personal injury actions.

802.025(1) (1) Definitions. In this section:

802.025(1)(a) (a) “Asbestos trust” means a trust, qualified settlement fund, compensation fund, or claims facility created as a result of an administrative or legal action, bankruptcy, agreement, or other settlement or pursuant to 11 USC 524 (g) or 49 USC 40101, that is intended to provide compensation to claimants alleging personal injury claims as a result of harm, also potentially compensable in the immediate action, for which the entity creating the trust, qualified settlement fund, compensation fund, or claims facility is alleged to be responsible.

802.025(1)(b) (b) “Personal injury claim” means any claim for damages, loss, indemnification, contribution, restitution or other relief, including punitive damages, that is related to bodily injury or another harm, including loss of consortium, society, or companionship, loss of support, personal injury or death, mental or emotional injury, risk or fear of disease or other injury, or costs of medical monitoring or surveillance and that is allegedly caused by or related to the claimant’s exposure to asbestos. “Personal injury claim” includes a claim made by or on behalf of the person who claims the injury or harm or by or on behalf of the person’s representative, spouse, parent, minor child, or other relative. “Personal injury claim” does not include a claim compensable by the injured patients and families compensation fund or a claim for compensatory benefits pursuant to worker’s compensation or veterans benefits.

802.025(1)(c) (c) “Trust claims materials” means all documents and information relevant or related to a pending or potential claim against an asbestos trust. “Trust claims materials” include claims forms and supplementary materials, proofs of claim, affidavits, depositions and trial testimony, work history, and medical and health records.

802.025(1)(d) (d) “Trust governance document” means any document that determines eligibility and payment levels, including claims payment matrices, trust distribution procedures, or plans for reorganization, for an asbestos trust.

802.025(2) (2) Required disclosures by plaintiff.

802.025(2)(a) (a) Within 45 days after March 29, 2014, or within 45 days after joinder of issues in an action subject to this section, whichever is later, the plaintiff shall provide to all parties a sworn statement identifying each personal injury claim he or she has filed or reasonably anticipates filing against an asbestos trust. The statement for each claim shall include the name, address, and contact information for the asbestos trust, the amount claimed by the plaintiff, the date that the plaintiff filed the claim, the disposition of the claim and whether there has been a request to defer, delay, suspend, or toll the claim against the asbestos trust.

802.025(2)(b) (b) Within 60 days after March 29, 2014, or within 60 days after joinder of issues in an action subject to this section, whichever is later, the plaintiff shall provide to all parties all of the following:

802.025(2)(b)1. 1. For each personal injury claim he or she has filed against an asbestos trust, a copy of the final executed proof of claim, all trust documents, including trust claims materials, trust governance documents, any documents reflecting the current status of the claim and, if the claim is settled, all documents relating to the settlement of the claim.

802.025(2)(b)2. 2. A list of each personal injury claim he or she reasonably anticipates filing against an asbestos trust, including the name, address, and contact information for the asbestos trust, and the amount he or she anticipates claiming against the trust.

802.025(2)(c) (c) The plaintiff shall supplement the information and materials he or she provides under pars. (a) and (b) within 30 days after the plaintiff files an additional claim or receives additional information or documents related to any claim he or she makes against an asbestos trust.

802.025(3) (3) Discovery; use of materials.

802.025(3)(a) (a) Trust claims materials and trust governance documents are admissible in evidence. No claims of privilege apply to trust claims materials or trust governance documents.

802.025(3)(b) (b) A defendant in a personal injury claim may seek discovery against an asbestos trust identified under sub. (2) or (4). The plaintiff may not claim privilege or confidentiality to bar discovery, and the plaintiff shall provide consents or other expression of permission that may be required by the asbestos trust to release information and materials sought by the defendant.

802.025(4) (4) Defendant’s identification of additional or alternative asbestos trusts.

802.025(4)(a) (a) If any defendant identifies an asbestos trust not named by the plaintiff against which the defendant reasonably believes the plaintiff should file a claim, upon motion by the defendant, the court shall determine whether to order the plaintiff to file a claim against the asbestos trust. The defendant shall provide all documentation it possesses or is aware of in support of the motion.

802.025(4)(b) (b) The court shall establish a deadline for filing a motion under par. (a). The court shall ensure that any deadline established pursuant to this paragraph affords the parties an adequate opportunity to investigate the defendant’s claims.

802.025(4)(c) (c) If the court orders the plaintiff to file a claim with the asbestos trust, the court shall stay the immediate action until the plaintiff swears or affirms that he or she has filed the claim against the asbestos trust and the plaintiff provides to the court and to all parties a final executed proof of claim and all other trust claims materials relevant to each claim the plaintiff has against an asbestos trust.

802.025(4)(d) (d) The court may allow additional time for discovery or may stay the proceedings for other good cause shown.

802.025(4)(e) (e) Not less than 30 days prior to trial, the court shall enter into the record a trust claims document that identifies each personal injury claim the plaintiff has made against an asbestos trust.

802.025(5) (5) Use of trust claim materials at trial. Trust claim materials that are sufficient to entitle a claim to consideration for payment under the applicable trust governance documents may be sufficient to support a jury finding that the plaintiff may have been exposed to products for which the trust was established to provide compensation and that such exposure may be a substantial factor in causing the plaintiff’s injury that is at issue in the action.

802.025(6) (6) Damages; assignment of claims.

802.025(6)(a) (a) If a verdict is entered in favor of the plaintiff in an action subject to this section and the defendant is found to be 51 percent or more causally negligent or responsible for the plaintiff’s entire damages under s. 895.045 (1) or (3) (d), the plaintiff may not collect any amount of damages until after the plaintiff assigns to the defendant all pending, current, and future rights or claims he or she has or may have for a personal injury claim against an asbestos trust.

802.025(6)(b) (b) If a verdict is entered in favor of the plaintiff in an action subject to this section and the defendant is found to be less than 51 percent causally negligent or responsible for the plaintiff’s entire damages under s. 895.045 (1) or (3) (d), the plaintiff may not collect any amount of damages until after the plaintiff assigns to the defendant all future rights or claims he or she has or may have for a personal injury claim against an asbestos trust.

802.025(7) (7) Failure to provide information; sanctions. A plaintiff who fails to timely provide all of the information required under sub. (2) or (4) is subject to ss. 802.05, 804.12, 805.03, and 895.044.

802.025 History History: 2013 a. 154; 2015 a. 195 s. 83.

802.03 802.03 Pleading special matters.

802.03(1) (1) Capacity. It is not necessary to aver the capacity of a party to sue or be sued or the authority of a party to sue or be sued in a representative capacity or the legal existence of an organized association of persons that is made a party. If a party desires to raise an issue as to the legal existence of any party or the capacity of any party to sue or be sued or the authority of a party to sue or be sued in a representative capacity, the party shall do so by specific negative averment which shall include such supporting particulars as are peculiarly within the pleader’s knowledge, or by motion under s. 802.06 (2).

802.03(2) (2) Fraud, mistake and condition of mind. In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity. Malice, intent, knowledge, and other condition of mind of a person may be averred generally.

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(9) (9) Foreclosure. In an action for foreclosure of real property, the complaint may not name a tenant of residential real property as a defendant unless the tenant has a lien or ownership interest in the real property.

802.03 History History: Sup. Ct. Order, 67 Wis. 2d 585, 619 (1975); 1975 c. 218; 2009 a. 28.

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., 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 Equipment 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 a 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. Meiers 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.

802.03 Annotation The heightened pleading standard set forth by sub. (2) for claims of fraud does not apply to claims made under s. 100.18. Hinrichs v. DOW Chemical Co., 2020 WI 2, 389 Wis. 2d 669, 937 N.W.2d 37, 17-2361.

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; 2007 a. 97.

802.045 802.045 Limited scope representation permitted — process.

802.045(1) (1) Authorized. An attorney’s role in an action may be limited to one or more individual proceedings or issues in an action if specifically so stated in a notice of limited appearance filed and served upon the parties prior to or simultaneous with the proceeding. Providing limited scope representation of a person under this section does not constitute a general appearance by the attorney for purposes of s. 801.14.

802.045(2) (2) Notice of limited appearance. The notice of limited appearance shall contain the following information:

802.045(2)(a) (a) The name and the party designation of the client.

802.045(2)(b) (b) The specific proceedings or issues within the scope of the limited representation.

802.045(2)(c) (c) A statement that the attorney will file a notice of termination upon completion of services.

802.045(2)(d) (d) A statement that the attorney providing limited scope representation shall be served with all documents while providing limited scope representation.

802.045(2)(e) (e) Contact information for the client including current address and phone number.

802.045(3) (3) Service. Service shall be made under s. 801.14 (2m).

802.045(4) (4) Termination of limited appearance. At the conclusion of the representation for which a notice of limited appearance has been filed, the attorney’s role terminates without further order of the court upon the attorney filing with the court, and serving upon the parties, a notice of the termination of limited appearance. A notice of termination of limited appearance shall contain all of the following information:

802.045(4)(a) (a) A statement that the attorney has completed all services within the scope of the notice of limited appearance.

802.045(4)(b) (b) A statement that the attorney has completed all acts ordered by the court.

802.045(4)(c) (c) A statement that the attorney has served the notice of termination of limited appearance on all parties, including the client.

802.045(4)(d) (d) Contact information for the client including current address and phone number.

802.045(5) (5) Forms. The director of state courts shall provide the clerk of circuit court in each county forms for use in filing notices required under this section.

802.045 History History: Sup. Ct. Order No. 13-10, 2014 WI 45, 354 Wis. 2d xliii.

802.05 802.05 Signing of pleadings, motions, and other papers; representations to court; sanctions.

802.05(1) (1) Signature. Every pleading, written motion, and other paper shall be signed by at least one attorney of record in the attorney’s individual name, or, if the party is not represented by an attorney, shall be signed by the party. Each paper shall state the signer’s address and telephone number, electronic mail address, and state bar number, if any. Any attorney or party signing a paper under this section shall designate and provide the court with a primary electronic mail address and shall be responsible for the accuracy of and any necessary changes to the electronic mail address provided to the court. Except when otherwise specifically provided by rule or statute, pleadings need not be verified or accompanied by affidavit. An unsigned paper shall be stricken unless omission of the signature is corrected promptly after being called to the attention of the attorney or party.

802.05(2) (2) Representations to court. By presenting to the court, whether by signing, filing, submitting, or later advocating a pleading, written motion, or other paper, an attorney or unrepresented party is certifying that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, all of the following:

802.05(2)(a) (a) The paper is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.

802.05(2)(b) (b) The claims, defenses, and other legal contentions stated in the paper are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law.

802.05(2)(c) (c) The allegations and other factual contentions stated in the paper have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.

802.05(2)(d) (d) The denials of factual contentions stated in the paper are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief.

802.05(2m) (2m) Additional representations to court as to preparation of pleadings or other documents. An attorney may draft or assist in drafting a pleading, motion, or document filed by an otherwise self-represented person. The attorney is not required to sign the pleading, motion, or document. Any such document must contain a statement immediately adjacent to the person’s signature that “This document was prepared with the assistance of a lawyer.” The attorney providing such drafting assistance may rely on the otherwise self-represented person’s representation of facts, unless the attorney has reason to believe that such representations are false, or materially insufficient, in which instance the attorney shall make an independent reasonable inquiry into the facts.

802.05(3) (3) Sanctions. If, after notice and a reasonable opportunity to respond, the court determines that sub. (2) has been violated, the court may impose an appropriate sanction upon the attorneys, law firms, or parties that have violated sub. (2) or are responsible for the violation in accordance with the following:

802.05(3)(a) (a) How initiated.

802.05(3)(a)1. 1. ‘By motion.’ A motion for sanctions under this rule shall be made separately from other motions or requests and shall describe the specific conduct alleged to violate sub. (2). The motion shall be served as provided in s. 801.14, but shall not be filed with or presented to the court unless, within 21 days after service of the motion or such other period as the court may prescribe, the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected. If warranted, the court may award to the party prevailing on the motion reasonable expenses and attorney fees incurred in presenting or opposing the motion. Absent exceptional circumstances, a law firm shall be held jointly responsible for violations committed by its partners, associates, and employees.

802.05(3)(a)2. 2. ‘On court’s initiative.’ On its own initiative, the court may enter an order describing the specific conduct that appears to violate sub. (2) and directing an attorney, law firm, or party to show cause why it has not violated sub. (2) with the specific conduct described in the court’s order.

802.05(3)(b) (b) Nature of sanction; limitations. A sanction imposed for violation of this rule shall be limited to what is sufficient to deter repetition of such conduct or comparable conduct by others similarly situated. Subject to the limitations in subds. 1. and 2., the sanction may consist of, or include, directives of a nonmonetary nature, an order to pay a penalty into court, or, if imposed on motion and warranted for effective deterrence, an order directing payment to the movant of some or all of the reasonable attorney fees and other expenses incurred as a direct result of the violation subject to all of the following:

802.05(3)(b)1. 1. Monetary sanctions may not be awarded against a represented party for a violation of sub. (2) (b).