Chapter 802

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.

802.10(3)(k) (k) Any other matters appropriate to the circumstances of the case, including the matters under sub. (5) (a) to (h).

802.10(5) (5) Pretrial conference. At a pretrial conference, the court may consider any matter that facilitates the just, speedy and inexpensive disposition of the action, including the matters under pars. (a) to (h) and sub. (3) (a) to (k). At a pretrial conference, the court may consider and take appropriate action with respect to all of the following:

802.10(5)(a) (a) The formulation and simplification of the issues.

802.10(5)(b) (b) The elimination of frivolous claims or defenses.

802.10(5)(c) (c) The possibility of obtaining party admissions or stipulations that will avoid unnecessary proof.

802.10(5)(d) (d) Any pretrial rulings on the admissibility of evidence, including limitations on the use of expert testimony under s. 907.02.

802.10(5)(e) (e) The identification of witnesses, exhibits and tangible demonstrative evidence.

802.10(5)(f) (f) The need and schedule for filing and exchanging pretrial briefs.

802.10(5)(g) (g) The dates for further conferences and for trial.

802.10(5)(h) (h) The disposition of pending motions.

802.10(6) (6) Authority of participants. An attorney for each party participating in any pretrial conference shall have the authority to enter stipulations and to make admissions regarding all matters that the participants may reasonably anticipate may be discussed. The court may require that a party or the party’s representative be present or reasonably available by telephone to consider possible settlement of the dispute.

802.10(7) (7) Sanctions. Violations of a scheduling or pretrial order are subject to ss. 802.05, 804.12, 805.03, and 895.044.

802.10 History History: Sup. Ct. Order, 67 Wis. 2d 585, 634 (1975); 1975 c. 218; Sup. Ct. Order, 82 Wis. 2d ix (1978); 1979 c. 32 s. 92 (4); 1979 c. 89, 177; 1981 c. 289; 1985 a. 29 s. 3202 (23); Sup. Ct. Order, 141 Wis. 2d xiii (1987); 1993 a. 486; Sup. Ct. Order No. 95-04, 191 Wis. 2d xxi (1995); 1999 a. 150 s. 672; 2001 a. 30 s. 108; 2005 a. 387; Sup. Ct. Order No. 09-01, 2010 WI 67, filed 7-6-10, eff. 1-1-11; 2011 a. 2.

802.10 Note Judicial Council Note, 2010: Sub. (3) has been amended to encourage courts to be more active in managing electronic discovery. Pursuant to Wis. Stat. s. 805.06, the court also may appoint a referee to report on complex or expensive discovery issues, including those involving electronically stored information. [Re Order effective Jan. 1, 2011]

802.10 Annotation The trial court properly granted default judgment against a party failing to appear at a scheduling conference, but the damage amount was not supported by the record. Gaertner v. 880 Corp., 131 Wis. 2d 492, 389 N.W.2d 59 (Ct. App. 1986).

802.10 Annotation Sub. (7) and s. 805.03 apply in criminal cases. A court has power to sanction a tardy attorney under these sections. Failure to delineate the reasons for the sanctions is an erroneous exercise of discretion. Anderson v. Circuit Court, 219 Wis. 2d 1, 578 N.W.2d 633 (1998), 96-3281.

802.10 Annotation The scheduling questionnaire used by the circuit court in this case was sufficient to satisfy former sub. (3), 2005 stats. The form was a convenient means to ascertain important scheduling information. Although the form consisted of a single sheet, it addressed many of the basic scheduling questions faced by a circuit court attempting to accommodate the potentially complex timing needs of several parties and their counsel. Hefty v. Strickhouser, 2008 WI 96, 312 Wis. 2d 530, 752 N.W.2d 820, 06-1094.

802.10 Annotation The excusable neglect standard set forth in s. 801.15 (2) (a) does not apply to untimely motions to enlarge scheduling order deadlines. Rather, this section provides the applicable standards and procedures courts apply to such motions. Parker v. Wisconsin Patients Compensation Fund, 2009 WI App 42, 317 Wis. 2d 460, 767 N.W.2d 272, 07-1542.

802.10 Annotation A party cannot unilaterally extend the deadline to abide by a scheduling order simply by stating that it reserves the right to do so. 260 North 12th Street, LLC v. DOT, 2010 WI App 138, 329 Wis. 2d 748, 792 N.W.2d 572, 09-1557.

802.10 Annotation Affirmed. 2011 WI 103, 338 Wis. 2d 34, 808 N.W.2d 372, 09-1557.

802.12 802.12 Alternative dispute resolution.

802.12(1) (1) Definitions. In this section:

802.12(1)(a) (a) “Binding arbitration” means a dispute resolution process that meets all of the following conditions:

802.12(1)(a)1. 1. A neutral 3rd person is given the authority to render a decision that is legally binding.

802.12(1)(a)2. 2. It is used only with the consent of all of the parties.

802.12(1)(a)3. 3. The parties present evidence and examine witnesses.

802.12(1)(a)4. 4. A contract or the neutral 3rd person determines the applicability of the rules of evidence.

802.12(1)(a)5. 5. The award is subject to judicial review under ss. 788.10 and 788.11.

802.12(1)(b) (b) “Direct negotiation” means a dispute resolution process that involves an exchange of offers and counteroffers by the parties or a discussion of the strengths and weaknesses or the merits of the parties’ positions, without the use of a 3rd person.

802.12(1)(c) (c) “Early neutral evaluation” means a dispute resolution process in which a neutral 3rd person evaluates brief written and oral presentations early in the litigation and provides an initial appraisal of the merits of the case with suggestions for conducting discovery and obtaining legal rulings to resolve the case as efficiently as possible. If all of the parties agree, the neutral 3rd person may assist in settlement negotiations.

802.12(1)(d) (d) “Focus group” means a dispute resolution process in which a panel of citizens selected in a manner agreed upon by all of the parties receives abbreviated presentations from the parties, deliberates, renders an advisory opinion about how the dispute should be resolved and discusses the opinion with the parties.

802.12(1)(e) (e) “Mediation” means a dispute resolution process in which a neutral 3rd person, who has no power to impose a decision if all of the parties do not agree to settle the case, helps the parties reach an agreement by focusing on the key issues in a case, exchanging information between the parties and exploring options for settlement.

802.12(1)(f) (f) “Mini-trial” means a dispute resolution process that consists of presentations by the parties to a panel of persons selected and authorized by all of the parties to negotiate a settlement of the dispute that, after the presentations, considers the legal and factual issues and attempts to negotiate a settlement. Mini-trials may include a neutral advisor with relevant expertise to facilitate the process, who may express opinions on the issues.

802.12(1)(g) (g) “Moderated settlement conference” means a dispute resolution process in which settlement conferences are conducted by one or more neutral 3rd persons who receive brief presentations by the parties in order to facilitate settlement negotiations and who may render an advisory opinion in aid of negotiation.

802.12(1)(h) (h) “Nonbinding arbitration” means a dispute resolution process in which a neutral 3rd person is given the authority to render a nonbinding decision as a basis for subsequent negotiation between the parties after the parties present evidence and examine witnesses under the rules of evidence agreed to by the parties or determined by the neutral 3rd person.

802.12(1)(i) (i) “Settlement alternative” means any of the following: binding arbitration, direct negotiation, early neutral evaluation, focus group, mediation, mini-trial, moderated settlement conference, nonbinding arbitration, summary jury trial.

802.12(1)(j) (j) “Summary jury trial” means a dispute resolution process that meets all of the following conditions:

802.12(1)(j)1. 1. Attorneys make abbreviated presentations to a small jury selected from the regular jury list.

802.12(1)(j)2. 2. A judge presides over the summary jury trial and determines the applicability of the rules of evidence.

802.12(1)(j)3. 3. The parties may discuss the jury’s advisory verdict with the jury.

802.12(1)(j)4. 4. The jury’s assessment of the case may be used in subsequent negotiations.

802.12(2) (2) 

802.12(2)(a) (a) A judge may, with or without a motion having been filed, upon determining that an action or proceeding is an appropriate one in which to invoke a settlement alternative, order the parties to select a settlement alternative as a means to attempt settlement. An order under this paragraph may include a requirement that the parties participate personally in the settlement alternative. Any party aggrieved by an order under this paragraph shall be afforded a hearing to show cause why the order should be vacated or modified. Unless all of the parties consent, an order under this paragraph shall not delay the setting of the trial date, discovery proceedings, trial or other matters addressed in the scheduling order or conference.

802.12(2)(b) (b) The parties shall inform the judge of the settlement alternative they select and the person they select to provide the settlement alternative. If the parties cannot agree on a settlement alternative, the judge shall specify the least costly settlement alternative that the judge believes is likely to bring the parties together in settlement, except that unless all of the parties consent, the judge may not order the parties to attempt settlement through binding arbitration, nonbinding arbitration or summary jury trial or through more than one of the following: binding arbitration, early neutral evaluation, focus group, mediation, mini-trial, moderated settlement conference, nonbinding arbitration, summary jury trial.

802.12(2)(c) (c) If the parties cannot agree on a person to provide the settlement alternative, the judge may appoint any person who the judge believes has the ability and skills necessary to bring the parties together in settlement.

802.12(2)(d) (d) If the parties cannot agree regarding the payment of a provider of a settlement alternative, the judge shall direct that the parties pay the reasonable fees and expenses of the provider of the settlement alternative. The judge may order the parties to pay into an escrow account an amount estimated to be sufficient to pay the reasonable fees and expenses of the provider of the settlement alternative.

802.12(3) (3) Actions affecting the family. In actions affecting the family under ch. 767, all of the following apply:

802.12(3)(a) (a) All settlement alternatives are available except focus group, mini-trial and summary jury trial.

802.12(3)(b) (b) If a guardian ad litem has been appointed, he or she shall be a party to any settlement alternative regarding custody, physical placement, visitation rights, support or other interests of the ward.

802.12(3)(c) (c) If the parties agree to binding arbitration, the court shall, subject to ss. 788.10 and 788.11, confirm the arbitrator’s award and incorporate the award into the judgment or postjudgment modification order with respect to all of the following:

802.12(3)(c)1. 1. Property division under s. 767.61.

802.12(3)(c)2. 2. Maintenance under s. 767.56.

802.12(3)(c)3. 3. Attorney fees under s. 767.241.

802.12(3)(c)4. 4. Postjudgment orders modifying maintenance under s. 767.59.

802.12(3)(d) (d) The parties, including any guardian ad litem for their child, may agree to resolve any of the following issues through binding arbitration:

802.12(3)(d)1. 1. Custody and physical placement under s. 767.41, 767.804 (3), 767.805 (4), 767.863 (3), or 767.89 (3).

802.12(3)(d)2. 2. Visitation rights under s. 767.43.

802.12(3)(d)3. 3. Child support under s. 767.511, 767.804 (3), 767.805 (4), 767.863 (3), or 767.89 (3).

802.12(3)(d)4. 4. Modification of subd. 1., 2. or 3. under s. 767.451 or 767.59.

802.12(3)(e) (e) The court may not confirm the arbitrator’s award under par. (d) and incorporate the award into the judgment or postjudgment modification order unless all of the following apply:

802.12(3)(e)1. 1. The arbitrator’s award sets forth detailed findings of fact.

802.12(3)(e)2. 2. The arbitrator certifies that all applicable statutory requirements have been satisfied.

802.12(3)(e)3. 3. The court finds that custody and physical placement have been determined in the manner required under ss. 767.405, 767.407 and 767.41.