Chapter 802

802.05 Note 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, 501 U.S. 32 (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 Note NOTE: Sup. Ct. Order No. 19-16 states that “the Comment to Wis. Stat. § 802.05 (2m) is not adopted, but will be published and may be consulted for guidance in interpreting and applying the rule.”

802.05 Note Comment to s. 802.05 (2m), 2020: A previous version of s. 802.05(2m) required an attorney to include his or her name and state bar number on documents prepared under s. 802.05(2m). This requirement was removed because of its chilling effect on the effectiveness of limited scope representation. However, attorneys are reminded that, even in the context of limited scope representation, all of the rules of professional conduct for attorneys apply, and limited scope cases should be conducted consistent with the attorney’s professional obligations, including SCR 20:1.1 (competence) and SCR 20:3.1 (meritorious claims and contentions). Lawyers are reminded to be wary that the client is not using the lawyer’s limited assistance to assert meritless claims. Providing limited scope representation will not insulate a lawyer from the potential disciplinary consequences of violation of applicable rules. Sua sponte or on motion to the court, a court may order a litigant to disclose the name of the attorney who assisted with preparation of the document, if known, and may direct the attorney to appear before the court to respond to the concerns raised. This comment is intended as a reminder of the existing ethical obligations imposed on all attorneys and an avenue for relief if a court is confronted with meritless filings submitted under this rule.

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. La Crosse 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. Township 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 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 this section and former s. 814.025, 1997 stats., 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 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. But see Schaefer v. Riegelman, 2002 WI 18, 250 Wis. 2d 494, 639 N.W.2d 715, 00-2157.

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 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 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. State ex rel. 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. State ex rel. Robinson v. Town of Bristol, 2003 WI App 97, 264 Wis. 2d 318, 667 N.W.2d 14, 02-1427.

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 Ass’n 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 122, 274 Wis. 2d 804, 683 N.W.2d 481, 03-2309.

802.05 Annotation To avoid permitting prisoners to easily avoid the judicial screening requirement that is central to the purpose of sub. (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 sub. (3), and a court must review the proposed amended pleading under that subsection before granting the prisoner leave to amend. State ex rel. 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 annotations cite to this section as it existed prior to its repeal and recreation by Sup. Ct. Order No. 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 No. 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 Co., 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.

802.05 Annotation Under sub. (1), every motion filed in court must be signed by an attorney, or it shall be stricken. Sub. (1) required the circuit court to strike from the record an affidavit and proposed order submitted by a child support agency that was not executed by an attorney. Meyer v. Teasdale, 2009 WI App 152, 321 Wis. 2d 647, 775 N.W.2d 123, 08-2827.

802.05 Annotation Ch. 767 does not prohibit civil sanctions for frivolous proceedings under this section. Therefore, a motion for sanctions under subs. (2) and (3) in a divorce action under ch. 767 is governed by the rules of civil procedure because ch. 767 does not preclude such motions. Wenzel v. Wenzel, 2017 WI App 75, 378 Wis. 2d 670, 904 N.W.2d 384, 16-1771.

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.

802.06(1)(a) (a) 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(1)(b) (b) Upon the filing of a motion to dismiss under sub. (2) (a) 6., a motion for judgment on the pleadings under sub. (3), or a motion for more definite statement under sub. (5), all discovery and other proceedings shall be stayed for a period of 180 days after the filing of the motion or until the ruling of the court on the motion, whichever is sooner, unless the court finds good cause upon the motion of any party that particularized discovery is necessary.

802.06(2) (2) How presented.

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)1. 1. Lack of capacity to sue or be sued.

802.06(2)(a)2. 2. Lack of jurisdiction over the subject matter.

802.06(2)(a)3. 3. Lack of jurisdiction over the person or property.

802.06(2)(a)4. 4. Insufficiency of summons or process.

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)7. 7. Failure to join a party under s. 803.03.

802.06(2)(a)8. 8. Res judicata.

802.06(2)(a)9. 9. Statute of limitations.

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; 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).