Chapter 802

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.

802.08 Annotation Section 802.06 (2) (b) serves as an exception to the summary judgment procedure laid out in this section. Section 802.06 (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 this section 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.

802.08 Annotation At the summary judgment stage, a court must determine whether the alleged facts comprise one or more causes of action. The substantive law governing a cause of action tells the court what types of facts a plaintiff must allege. If the facts satisfy all of the constitutive elements of the claim, then the complaint has stated a good cause of action, and the court’s summary judgment analysis may proceed. The cause of action is important, therefore, because it is the standard against which the court measures the sufficiency of the complaint’s factual allegations. Tikalsky v. Friedman, 2019 WI 56, 386 Wis. 2d 757, 928 N.W.2d 502, 17-0170.

802.08 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.

802.08 Annotation The summary judgment statutes explicitly allow controversies to be resolved without a jury trial when there are no disputed material facts, because there is nothing to try. In this case, because the defendant did not submit any affidavits placing material facts in dispute in opposing the plaintiff’s summary judgment motion, the defendant failed to show that the defendant was deprived of the right to a jury trial. City of New Lisbon v. Muller, 2023 WI App 65, 410 Wis. 2d 309, 1 N.W.3d 761, 22-1683.

802.08 Annotation 101: Refresher: Wisconsin’s Summary Judgment Methodology. Loudenslager. Wis. Law. Apr. 2020.

802.09 802.09 Amended and supplemental pleadings.

802.09(1) (1) Amendments. A party may amend the party’s pleading once as a matter of course at any time within 6 months after the summons and complaint are filed or within the time set in a scheduling order under s. 802.10. Otherwise a party may amend the pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given at any stage of the action when justice so requires. A party shall plead in response to an amended pleading within 20 days after service of the amended pleading unless: a) the court otherwise orders; or b) no responsive pleading is required or permitted under s. 802.01 (1). 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 party pleading in response 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.

802.09(2) (2) Amendments to conform to the evidence. If issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure to so amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice such party in maintaining the action or defense upon the merits. The court may grant a continuance to enable the objecting party to meet such evidence.

802.09(3) (3) Relation back of amendments. If the claim asserted in the amended pleading arose out of the transaction, occurrence, or event set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the filing of the original pleading. An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by law for commencing the action against such party, the party to be brought in by amendment has received such notice of the institution of the action that he or she will not be prejudiced in maintaining a defense on the merits, and knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against such party.

802.09(4) (4) Supplemental pleadings. Upon motion of a party the court may, upon such terms as are just, permit the party to serve a supplemental pleading setting forth transactions or occurrences or events which have happened since the date of the pleading sought to be supplemented. Permission may be granted even though the original pleading is defective in its statement of a claim for relief or defense. If the court deems it advisable that the adverse party plead to the supplemental pleading, it shall so order, specifying the time therefor.

802.09(5) (5) Telephone hearings. Oral argument permitted on motions under this section may be heard as prescribed in s. 807.13 (1).

802.09 History History: Sup. Ct. Order, 67 Wis. 2d 585, 632 (1975); 1975 c. 218; Sup. Ct. Order, 82 Wis. 2d ix (1978); Sup. Ct. Order, 141 Wis. 2d xiii (1987); 1997 a. 187; 2001 a. 16; 2005 a. 442.

802.09 Note Judicial Council Committee’s Note, 1977: Sub. (1) has been amended to allow a party to amend pleadings once as a matter of course at any time within 6 months of the time the summons and complaint are filed or within a time established in a scheduling order under s. 802.10. The 6-month time period has been established as the previous procedure stating that a party is allowed to amend pleadings once as a matter of course at any time prior to the entry of a scheduling order is no longer applicable in most cases. The use of a scheduling order is now discretionary under s. 802.10.

802.09 Annotation Sub. (1) also clarifies that leave of the court may be given at any stage of the action for amendment of pleadings when justice requires.

802.09 Annotation Sub. (3) has been amended to adopt language consistent with revised s. 802.02 (1). See note following s. 802.02 (1). [Re Order effective July 1, 1978]

802.09 Note Judicial Council Note, 1988: Sub. (5) [created] allows oral arguments permitted on motions under this section to be heard by telephone conference. [Re Order effective Jan. 1, 1988]

802.09 Annotation Amendments should not be allowed eight years after an accident and five years beyond the running of the statute of limitations. Drehmel v. Radandt, 75 Wis. 2d 223, 249 N.W.2d 274 (1977).

802.09 Annotation The trial court abused its discretion in prohibiting amendment of the pleadings on the second day of trial to plead quantum meruit as an alternative to substantial performance of the contract. Tri-State Home Improvement Co. v. Mansavage, 77 Wis. 2d 648, 253 N.W.2d 474 (1977).

802.09 Annotation Under sub. (2), a complaint will be treated as amended, even though no amendment has been requested, when proof has been submitted and accepted. Goldman v. Bloom, 90 Wis. 2d 466, 280 N.W.2d 170 (1979).

802.09 Annotation Sub. (3) is identical to Federal Rule of Civil Procedure 15 (c). “Changing the party” includes adding a defendant when the requirements of sub. (3) are met. State v. One 1973 Cadillac, 95 Wis. 2d 641, 291 N.W.2d 626 (Ct. App. 1980).

802.09 Annotation In a products liability action, a new cause of action for punitive damages brought after the statute of limitations expired related back to the date of filing the original pleading. Wussow v. Commercial Mechanisms, Inc., 97 Wis. 2d 136, 293 N.W.2d 897 (1980).

802.09 Annotation When an action against an unnamed defendant under s. 807.12 was filed on the last day of the limitation period and amended process naming the defendant was served within 60 days after filing, the action was not barred. Relation back requirements of sub. (3) were inapplicable. Lak v. Richardson-Merrell, Inc., 100 Wis. 2d 641, 302 N.W.2d 483 (1981).

802.09 Annotation While the circuit court was correct in holding that it had the power to amend a complaint on its own motion after the presentation of evidence, the court erred in not granting the parties the opportunity to present additional evidence on the complaint as amended. State v. Peterson, 104 Wis. 2d 616, 312 N.W.2d 784 (1981).