Chapter 802

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).

802.09 Annotation An amended pleading adding a separate claim by a different plaintiff related back to the date of filing the original complaint. Korkow v. General Casualty Co. of Wisconsin, 117 Wis. 2d 187, 344 N.W.2d 108 (1984).

802.09 Annotation Implied consent under sub. (2) requires that the parties understood that evidence was aimed at unpleaded issues. Even after a finding of no implied consent an “interests of justice” determination, which is essentially a determination of prejudice, must be made. Zobel v. Fenendael, 127 Wis. 2d 382, 379 N.W.2d 887 (Ct. App. 1985).

802.09 Annotation Whether an amendment “relates back” to the original complaint date depends on whether the opposing party had notice of the claim from the original complaint. An insurer who insures more than one party involved in an accident does not, as a matter of law, have notice of separate claims under different policies from a complaint against one of its insureds, but it may have notice of a claim against more than one insured if they are covered by the same policy. Biggart v. Barstad, 182 Wis. 2d 421, 513 N.W.2d 681 (Ct. App. 1994).

802.09 Annotation A plaintiff’s response to a motion for a more definite answer, no matter how termed, cannot extinguish the right to amend within six months as a matter of course. Kox v. Center for Oral & Maxillofacial Surgery, S.C., 218 Wis. 2d 93, 579 N.W.2d 285 (Ct. App. 1998), 97-3045.

802.09 Annotation An amended complaint that makes no reference to or incorporates any of the original complaint supersedes the original complaint when the amended complaint is filed in court. When such a complaint was filed prior to the time for answering the original complaint had run, it was improper to enter a default judgment on the original complaint. Holman v. Family Health Plan, 227 Wis. 2d 478, 596 N.W.2d 358 (1999), 97-1490.

802.09 Annotation Sub. (3) requires receipt of notice of the institution of the action within the statute of limitation period. Grothe v. Valley Coatings, Inc., 2000 WI App 240, 239 Wis. 2d 406, 620 N.W.2d 463, 00-0524.

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

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

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

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

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

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

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

802.09 Annotation To avoid permitting prisoners to easily avoid the judicial screening requirement that is central to the purpose of former s. 802.05 (3), 2003 stats., prisoners may not amend their initial pleadings as a matter of course under sub. (1). A prisoner’s amendment of an initial pleading is subject to the judicial screening requirement of former s. 802.05 (3), 2003 stats., 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.

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

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

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

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

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

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

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

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

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

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

802.09 Annotation The doctrine that pleadings should be deemed amended to conform to the evidence only applies when evidence related to the issue has been presented at trial. At the pleadings stage, the applicable statute is s. 802.02 (1). Soderlund v. Zibolski, 2016 WI App 6, 366 Wis. 2d 579, 874 N.W.2d 561, 14-2479.

802.09 Annotation Although the complaint in this case was devoid of any reference to a cause of action for civil liability theft under s. 895.446, the circuit court properly determined that the defendant had ample notice of the plaintiff’s claim for statutory theft based upon the defendant’s agreement to instruct the jury on civil liability theft, and the submission of a special verdict question on the issue of the defendant’s theft under that statute to the jury. Estate of Miller v. Storey, 2016 WI App 68, 371 Wis. 2d 669, 885 N.W.2d 787, 14-2420.

802.09 Annotation Affirmed in part and reversed in part on other grounds. 2017 WI 99, 378 Wis. 2d 358, 903 N.W.2d 759, 14-2420.

802.09 Annotation If a plaintiff is required to join a party holding a “constituent part” of a cause of action under s. 803.03 (2) (a) but fails to do so, then the unjoined subrogation, derivative, or assigned claims are deemed timely when made by the other party by virtue of the sub. (3) relation-back doctrine—as long as such claims are asserted in the original action. However, if the plaintiff is not required to join the other party’s cause of action under s. 803.03 (2) (a)—i.e., the other party’s claims do not arise by subrogation, derivation, or assignment, and therefore are not part of the plaintiff’s claim in chief—the other party’s claims do not relate back to the date of the original filing and are time-barred. Town of Burnside v. City of Independence, 2016 WI App 94, 372 Wis. 2d 802, 889 N.W.2d 186, 16-0034.

802.10 802.10 Calendar practice.

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

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

802.10(3)(a) (a) The time to join other parties.

802.10(3)(b) (b) The time to amend the pleadings.

802.10(3)(c) (c) The time to file motions.

802.10(3)(d) (d) The time to complete discovery.

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

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

802.10(3)(g) (g) The dates for conferences before trial, for a final pretrial conference and for trial.

802.10(3)(h) (h) The appropriateness and timing of summary judgment adjudication under s. 802.08.

802.10(3)(i) (i) The advisability of ordering the parties to attempt settlement under s. 802.12.

802.10(3)(j) (j) The need for adopting special procedures for managing potentially difficult or protracted actions that may involve complex issues, multiple parties, difficult legal questions or unusual proof problems.

802.10(3)(jm) (jm) The need for discovery of electronically stored information.