Section 802.09. Amended and supplemental pleadings.

 

(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.

(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.

(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.

(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.

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

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 . 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. 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. 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] 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] Amendments should not be allowed 8 years after an accident and 5 years beyond the running of the statute of limitations. Drehmel v. Radandt, 75 Wis. 2d 223 , 249 N.W.2d 274 (1977). The trial court abused its discretion in prohibiting amendment of the pleadings on the 2nd 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). 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). Sub. (3) is identical to FRCP 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). 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). 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). 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). 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). 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). 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). A plaintiff's response to a motion for a more definite answer, no matter how termed, cannot extinguish the right to amend within 6 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 . 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 . 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 . "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 . 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 . 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 . "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 . 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 . 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 runs 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 . 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 . To avoid permitting prisoners to easily avoid the judicial screening requirement that is central to the purpose s. 802.05 (3), 2003 stats., 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 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. Lindell v. Litscher, 2005 WI App 39 , 280 Wis. 2d 159 , 694 N.W.2d 396 , 03-2477 . When the plaintiff timely named a defendant, who had been a predecessor company's employee, and an unknown defendant in a complaint, she did not give the successor company, who had never employed the named defendant, adequate notice that it would have to investigate and defend against her claims. Plaintiff's theory that their 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 . 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 it 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 . 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 Company, 2007 WI App 123 , 300 Wis. 2d 607 , 731 N.W.2d 657 , 06-1617 . 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 3rd-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 Company, 2007 WI App 123 , 300 Wis. 2d 607 , 731 N.W.2d 657 , 06-1617 . 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 . 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 . To amend a pleading within 6 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 . 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 . 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 him or her has a strong interest in repose. But repose would be a windfall for a prospective defendant who understood, or who should have understood, that he or she escaped suit during the limitations period only because the plaintiff misunderstood a crucial fact about his or her identity. Tews v. NHI, LLC, 2010 WI 137 , 330 Wis. 2d 389 , 793 N.W.2d 860 , 09-0828 . 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 . 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 .