*1 Steven C. David Bratz, Tietsworth, Myers, Gary Streitenberger, John W. Gary Wegner and on behalf of themselves similarly
and all others situated, Plaintiffs-Appellants,
v. Inc. Harley-Davidson, Harley-Davidson Company, Motor Defendants-Respondents-Petitioners.
Supreme Court
argument
No. 2004AP2655. Oral
September
July
Decided
For the Warshafsky, Warshafsky, Crivello, II, T. and W. Frank Bloch, S.C., Milwaukee; Rotter, & Reinhardt Tarnoff, Cabraser, Leebove, Selbin, Lieff, and D. Lisa J. Jonathan LLP, Bernstein, Francisco, Calif.; San David Heimann & Reese, Bershad, Buchman, R. Michael M. Michael J. Milberg LLP, York, Schulman New Weiss Bershad & O'Reilly, Shpetim Ademi, Ademi, N.Y.; Robert K. Guri Cudahy, argument O'Reilly,LLP, and oral Ademi & by D. Jonathan Selbin. presented PROSSER, The T. J. issue 1. DAVID may reopen their review is whether complaint after the circuit court
case and amend their complaint entirety in its on the has dismissed the appeal. affirmed and the dismissal has been on merits reversed the circuit court's deter court reopen it could not the case amend the mination that complaint a clear directive from on these facts without Harley- deciding appeal. Tietsworth v. the court (Tietsworth III), App Davidson, 5, 2006 WI Inc. carefully reviewing After 2d 709 N.W.2d901. statutory policy facts, law, and case and the agree procedural code, in the we with the embodied Consequently, court of we reverse the circuit court. appeals. ¶ 2. Wehold that in the absence of a remand order in the mandate line or some other clear directive from appellate ultimately deciding appeal, court a authority reopen circuit court no has an case for complaint appellate amended after an af- has complaint entirety firmed dismissal in its on the merits.
FACTS AND PROCEDURAL HISTORY lengthy history, including ¶ 3. This case has a previous Harley- decision this court. Tietsworth v. (Tietsworth II), Davidson, Inc. 2004 WI 270 Wis. 2d 146, 677 233. In II, N.W.2d this court ad plaintiffs' complaint dressed the merits of tort-based against upon the defendants. Now we are called *7 procedural address the ramifications of Tietsworth II. requires procedural history This us to set out the case. 28, 4. On 2001, Tietsworth, June Steven C. a complaint California,
resident of filed a in the Milwau County kee Circuit Court on behalf of himself a and persons consisting class allof and in entities the United acquired owned, States own, leased, lease, who have or early Harley-Davidson 1999 and 2000 model motor cycles equipped with Twin Cam 88 or Twin Cam 88B engines. Harley-Davidson, Tietsworth v. Inc. (Tietsworth (Mil. 2001), Cty. No. 2001CV6928 Ct. Cir. 2001).1 complaint alleged 28, June The defendants, that Harley-Davidson, Harley-Davidson Inc. and Motor
1 Tietsworth is a nonlegal denomination that distin guishes this case from a second Tietsworth case filed in 2004 (Tietsworth 2004). appellate The published decisions heretofore I, in II, this case are denominated Tietsworth Tietsworth and Hence, III. Tietsworth this will decision become Tietsworth IV. (Harley), designed, Company mar- manufactured, had motorcycles engines with defective keted, and sold faulty, bearings inferior, and were of cam that because prone complaint asserted four to sudden failure. (2) (1) negligence; strict causes of action: tort-based (3) liability; products concealment; and fraudulent (4) deceptive misrepresentation trade and fraudulent 100.18(1) practices of Wis. Stat. in violation (ll)(b). September 27, 2001, Tietsworth amended 5. On adding complaint, residents as Wisconsin four
his Tietsworth). (collectively, named complaint dis- basis for the 6. The factual II, ¶¶ In 146, 2d 5-6. 270 Wis. cussed Harley-Davidson, only major American- essence, redesigned motorcycle manufacturer, its motor- based developing cycle engines 1990s, late the Twin engines for the 1999 88 and Twin Cam 88B Cam January problem cropped up. early A On 2000 models. ap- Harley a Tietsworth and sent letter to subject proximately 140,000 motor- other owners of bearing explaining cycles, in small "the rear cam that engines Harley-Davidson has Twin Cam 88 number of Harley owners While the letter assured failed." worry they probably have to about would never Harley extending reported problem, was it warranty mileage one-year/unlimited to a standard bearing. warranty five-year/50,000 mile on the rear cam engines repair imme- their For owners who wanted to diately, Harley *8 bearing repair kits available cam made for $495.00. Harley alleged complaint 7. Tietsworth's engines
motorcycles are Twin Cam 88 or 88B with the unreasonably danger- inherently an defective and have bearing premature propensity failure, cam suffer ous resulting engine Although failure. Tietsworth did not identify any specific engine especially failures, in mo- torcycles plaintiffs, owned the named he asserted bearing posed safety "inherent cam defect" Harley risks and diminished the value of all motor- cycles engines. with Twin Cam 88 This led to his four tort-based claims. Harley 8. On 1, November 2001, filed motions complaint stay discovery. dismiss the and to On
December 2001, Tietsworth filed a cross-motion to compel discovery. The court, circuit Haese, William J. Judge, granted Harley's stay discovery; motion to and February 27, on 2002, it dismissed the entire com- plaint for failure to state a claim.2 The court dismissed negligence products liability and strict claims be- plaintiffs allege any damages cause the failed to actual and because the economic loss doctrine barred the claims. The court dismissed the two fraud claims be- allege any damages. cause the did not actual April ¶ 9. On 12, 2002, Tietsworth filed a notice to appeal the dismissal of his common law fraud and statutory misrepresentation/deceptive fraudulent trade practices claims. day April 10. On that same 12—Tietsworth's — separate against
counsel filed a class action lawsuit Harley on Kempen behalf of Wilton Jones Richard Jones). (collectively, The Jones suit made contract namely, warranty unjust claims, breach of enrich- involving ment, based on the same facts the Twin Cam Harley engines. Harley-Davidson, 88 and 88B Jones v. (Mil. 2002). Cty. Apr. Inc., No. 2002CV3629 Cir. Ct. 2 The circuit court complaint dismissed the approximately eight months complaint after the was filed. *9 September
¶ 23, 2002, the Milwaukee 11. On Judge, County Jeffrey dis- Court, Kremers, A. Circuit complaint for failure to state a Jones missed entire injury. allege cognizable did not claim because Jones of a breach court that to recover under The stated allege warranty, required failure an actual Jones was Harley's inability engine fix or refusal of allegation A of a defect was not sufficient. failure. mere unjust enrichment, Likewise, under Jones to recover alleged engine did not have actual failure. Jones must appeal. appeals 4, 2003, 12. of On March court Harley- appeal. Tietsworth v.
decided Tietsworth's
(Tietsworth I),
App
Davidson,
75, 261
2003 WI
Inc.
of
2d
¶ 14. We the common law fraud claim holding by it was barred the economic loss *10 Id., doctrine. Our 37. discussion of the economic loss following passages paragraphs doctrine included the 36 and 37: such, plaintiffs
As warranty have remedies alleged motorcycles. addition, defects in their In are there contract remedies at law and in equity to the extent that the fraudulently were induced to purchase motorcycles. their A fraudulently contract voidable; induced is party fraudulently void or a in- may duced to enter a contract affirm the contract and damages pursue seek for breach or the equitable rem- edy of rescission and restitutionary damages seek .... The economic loss doctrine does not bar these contract fraudulently remedies for induced contracts. ... short,
In recognize we see no exception reason to an to the economic loss doctrine to allow this consumer dispute contract to be remedied an as intentional misrepresentation tort. The economic loss doctrine plaintiffs' bars the plain- common-law fraud claim. The may tiffs have contract remedies —breach contract/warranty or rescission and restitution —but may pursue not a tort misrepresentation claim for premised having purchased allegedly on defective mo- torcycles. II, ¶¶
Tietsworth 270 Wis. 2d 36-37. discussing ¶ 15. After claims, both fraud we re- appeals. versed the court of Our mandate stated: "The Appeals decision of the Court of is reversed." Id. at 172. There was no mention of "remand" the mandate or in the decision. Following II, 16. the release of Tietsworth completely against
Tietsworth filed a new lawsuit (1) (2) Harley alleging warranty; restitution; breach of (3) v. inducement to contract. Tietsworth fraudulent (Tietsworth 2004), Harley Davidson, No. Inc. (Mil. 2004). Cty. Apr. 12, new Cir. This 2004CV3305 Ct. Judge assigned case was to Circuit Francis Wasielewski. decided, however, that he had made Tietsworth soon by filing complaint, procedural that instead error a new Harley reopen He 2001. asked he wanted to Tietsworth voluntary stipulate to the dismissal of Tietsworth Harley Harley refused. filed a motion to dismiss May theory under 26, 2004, on Tietsworth 2004 preclusion. claim 17, 2004, On June while Tietsworth pending, Judge Circuit Michael Tietsworth asked
was original Judge Guolee, who had inherited the case from reopen Haese, for to amend leave *11 complaint. Tietsworth claims: asserted three new (1) (2) warranty; fraudulent inducement to breach of (3) unjust contract; Id. enrichment. Judge
¶ 18. Before ruled on Tietsworth's Guolee granted Harley's Judge motion, motion to Wasielewski Judge 2004.3 reasoned dismiss Tietsworth Wasielewski preclusion claims were barred claim that new on court's in Tietsworth II.4 He also based decision claims were barred under considered whether new preclusion by the circuit court's in Jones. claim decision Although parties in he noted that two cases Judge pondered identical, were not Wasielewski parties unity shared a of interest sufficient whether the preclusion that claim barred the claims in Tietsworth question. The reached on court no conclusion that parties agreed, of however, dismissal 26, July The case was dismissed on 4 It claim for of war also dismissed Tietsworth's breach ranty for failure to state claim. preclude Judge
Tietsworth 2004 would not in itself reopening original from grounds Guolee Tietsworth 2001 preclusion. claim case on August Judge ¶ 19. On 23, 2004, Guolee ruled original complaint that Tietsworth could not amend his warranty to introduce contract and claims. The court authority held that it did not have under Wis. Stat. 808.08(3) reopen the case. It found that the deci- may "[a] sion of this court was final and that trial court pleadings Supreme not allow amendments of when the judgment [of dismissal]." Court affirmed the The court language paragraphs found that the 36 and 37 of the supreme opinion, context, when read in did not grant reopen or allow the court to the case. Again appealed.
¶ 20. Tietsworth On December appeals concluding 13, 2005, the court of reversed, denying plaintiffs' the circuit court "erred motion reopen complaint." III, and amend the appeals 680, Wis. 2d 9. The court of said that 808.08(3) Wis. Stat. allowed the circuit court to re open Id., ¶¶ the case. 13-18. It reasoned that this court reversed the court of but did not "affirm a judgment of dismissal or direct that a Id., dismissal be entered." 14. The court cited State Son, ex. rel. J.H. & Inc. v. Circuit Court Findorff County, Milwaukee 25, 2000 WI 2d 428, 233 Wis. proposition for the N.W.2d that the trial court often has some discretion "on remand" to resolve mat open, provided ters left that its action is not inconsis *12 higher tent with the order of the court. The court of open [of court] said that the "mandate left opportunity pursue for the to contract and warranty amending complaint claims[;]" therefore, supreme would not be inconsistent with the court's III, ¶ order. Tietsworth 288 2d 680, Wis. 15. The court
107 present State, distinguished 69 from Sutter v. case (1975), contro where the 391 709, Wis. 2d N.W.2d fully upon versy the merits. and was tried went to trial ¶ The court of III, 680, 2d 19. 288 Wis. Tietsworth appeals justice requires an further concluded that pleadings was un because the law amendment viability claims when of Tietsworth's clear as to the complaint. ¶ Id., 22. The first filed the justice requires amendment an also said that court acknowledged was that Tietsworth court because this warranty pursue claims contract and entitled to ¶ paragraphs Id., 36 and 37 of its decision. Harley petitioned
¶ review, which this February granted 27, 2006. on OF REVIEW
STANDARD statutory au a circuit court has 22. Whether statutory reopen question thority of a case is a question interpretation a review de novo as we M., 68, 5, 291 Lamanda 2006 WI law. Robin K. v. has a circuit court 2d 718 N.W.2d38. Whether Wis. presents non-statutory authority reopen a case also question Invs., 228 Sav. Bank v. ROI of law. Harvest (Ct. 1999); App. 733, 737-38, 2d 598 N.W.2d E.C., 376, 381, 2d 387 N.W.2d see Breier v. 130 Wis. (1986). meaning the final arbiter of the This court is questions mandates, review as of its own which we law.
ANALYSIS requires to determine the court 23. This case reopen authority had the circuit court whether complaint grant after leave to amend the case and *13 original complaint circuit court had dismissed the in its entirety on merits and the dismissal was affirmed appeal. appeals on The court of determined that the circuit court erred when it denied Tietsworth's motion 808.08(3) § reopen the case under Stat. Wis. complaint when it denied motion his to file an amended 802.09(1). § III, under Wis. Stat. 288 Wis. 2d grounds, appeals 25. On these the court of reversed and directed the circuit court to enter an order allowing complaint. Tietsworth to file an amended Id.
¶ 24. We reverse the court of because the authority circuit court did not have under Wis. Stat. 808.08(3) § reopen this case for an amended com- plaint without a remand or order and therefore did not authority grant have leave to amend Tietsworth's 802.09(1). complaint § under Wis. Stat. 802.09(1) §
A. Wis. Stat. 802.09(1) § ¶ 25. We look at first Wis. Stat. acknowledge policy that Wisconsin embraces a in favor pleadings.5 of liberal amendment of Wisconsin Stat. 802.09(1) § party pleading allows a to amend the "once any as a matter of at course time within 6 months after complaint the summons and are filed or within the time scheduling in a set order under s. 802.10." Under other party may pleading only circumstances, "a amend by leave of court or written consent of the adverse 802.09(1). § party." Stat. However, Wis. Wis. Stat. 802.09(1) provides freely given that "leave shall at be any stage justice requires." of the action when so 802.09(1) added); (emphasis Jay Grenig, Stat. see E.
5 All references to the are to the Wisconsin Statutes 2005-06 version unless otherwise noted. § 209.2, at Civil Procedure Practice Series:
Wisconsin 2003) (3d (stating, discre- "The court has wide ed. *14 permit determining to amendment in whether tion justice any stage proceedings pleadings if so of the at of requires."). policy in Stat. ¶ embodied Wis. 26. The liberal 802.09(1) presumption in The limitations. does have grounded in a amendment, is statute which favor "Pleadings, chapter Motions and entitled whose only judg applies logically before Practice," Pretrial Stat. ch. in the case. See Wis. ment been entered has added); (emphasis Ricciardi, & v. Piaskoski Assocs. App ¶ 2d 686 N.W.2d 31, 275 Wis. 2004 WI App 2d Allison, 11, 27, 259 Wis. 675; Mach v. 2003 WI entered, 766. Once has been 686, 656 N.W.2d disappears presumption in in of amendment favor countervailing protect need interests of the to order finality. present implicate, alter The does or case not policy interpretation of, Wis. Stat. 802.09 and pleadings. Rather, the in of liberal amendment of favor present the circuit court had case turns on whether authority grant to amend Tietsworth's com- leave plaint after the circuit court had dismissed Tietsworth's entirety on the merits and Tietsworth claim its appealed. an order dis- Once the circuit court issued entirety missing complaint its Tietsworth's appealed order, final the circuit court Tietsworth longer jurisdiction had over the case. no appeals If the court of had affirmed complaint I, in Tietsworth circuit court's dismissal appeals could have directed the circuit court grant complaint. leave to amend Tietsworth's appeals, however, court of reversed the circuit court's complaint. dismissal of The decision to reverse and jurisdic- remand would have restored the circuit court's appealed. tion if the decision had not been But when Harley petitioned granted this court and this court appeals jurisdiction review, the court of also lost over the case.
¶ 29. When this court decided in II appeals thereby reverse the court of affirm the complaint, circuit court's dismissal of Tietsworth's court's decision became the law of the case. At that point, neither the circuit court nor the court of authority grant *15 had to leave to amend Tietsworth's complaint without a clear directive from this court. §§ B. Wis. Stat. 808.08 and 808.09 granted ¶ 30. Whether this court the circuit court authority reopen the case is thus an issue. To resolve §§ issue, we examine Wis. Stat. 808.09, 808.08 and language and the relevant in Tietsworth II. § provides appel- 31. Wisconsin Stat. 808.09 an (1) options appeal:
late court with several on appellate may modify reverse, affirm, or (2) (3) judgment may order; or trial; it order a if new or appeal part judgment is from a order, of the or it may modify part judg- reverse, affirm, or § ment or order. Wis. Stat. "In 808.09. all cases an appellate judgment court shall remit its or decision to thereupon the court proceed below the court below shall in accordance with the or decision." Id.
Ill § is an of Wis. Stat. 808.09 last sentence "proceed" explicit court below" to directive to "the implement "judgment Thus, the circuit or decision." authority carry mandate, out the court has clear appellate court has affirmed or reversed the whether the authority, The circuit court also has with- circuit court. explicit "left direction, to address collateral matters out open" entry preparation case, costs,
in the
such as
necessary
correction of clerical or com-
documents, and
long
putational
undo
errors,
as these actions do not
so
appellate
However,
court.
there can be
the decision of
in
that conflict
no amendments
expressed
the trial court
with
appellate
implied
or
mandate of the
court. See
§
Pleading
Callaghan's
& Practice 55.81
6A
Wisconsin
(4th
2005) (citing
Ludwig,
rel. Kurath v.
ed.
State ex
(1911);
Armstrong,
Smith v.
Wis.
132 N.W 130
(1870)).
517,
¶ 33. Wisconsin Stat. 808.08 is different from proceedings Stat. 808.09. Entitled "Further appellate governs court," trial it situations which explicit provided court has the circuit court with orders proceedings. or directions for further These situations categories. into three Stat. 808.08 fall Wisconsin reads: Proceedings
Further in trial court. in the When the record and remittitur are received trial court:
(1) judge specific If trial is ordered to take action, judge possible. shall do so as soon as
(2) ordered, court, upon If a trial the trial new is record, receipt place the matter on of the remitted shall the trial calendar.
112 (3) proceedings If action or other than those men- (1) (2) ordered, tioned in sub. or is any party may, year receipt within one after of the remitted record court, the clerk of the trial appropriate make motion for proceedings. proceedings further If further are not so initiated, the action shall be except dismissed that an one-year period extension of the may granted, be on notice, by court, the trial if the order for extension is during one-year entered period. requires
¶ 34. The issue in this case us to inter- (3) pret § subsection of Wis. Stat. 808.08 to determine statutory authority whether reopen the trial court had (1) proceedings. the case for further Subsection § apply of 808.08 does not because Tietsworth II did not "specific order is, action"—that Tietsworth II did not perform "purely order the trial court to ministerial duty." See 2d Findorff, 428, Wis. 20. Subsection (2) apply of 808.08 does not because Tietsworth II did not order "a new trial."
¶ 35. To determine whether the circuit court had
808.08(3)
authority
reopen
under Wis. Stat.
proceedings,
engage
statutory
case for further
we
interpretation. "[Statutory interpretation 'begins with
language
meaning
of the
If
statute.
plain,
ordinarily stop
inquiry.'"
statute is
we
State
County,
ex rel. Kalal v. Circuit Court Dane
2004 WI
(quoting
¶58,
633,
2dWis.
¶ 36. Stat. § 808.08(3), expressly provides we see that the statute "proceedings" that "action" or be "ordered." The common *17 meaning an "authoritative direc- the noun "order" is of (Albert Dictionary 372 & "command." Webster's tion" or 1981). Heritage Loy eds., The American Morehead (3d 1992), English Language Dictionary ed. of "order" is "a direction or law, in an indicates adjudicative by a court or other command delivered body record;" the verb "order" and entered into the Therefore, a command or instruction." means to "issue (3) plain language statute, subsection under the appellate triggered directs, court if and when "orders") (i.e., the circuit commands, or instructs "specific proceedings or other than to take "action" (1) (2). in or new trial described subsections action" interpret subsec- 37. This court had occasion (3) explained Stat. The court that Wis. tion Findorff. § § read Stat. 801.58 have often been 808.08 Wis. together. The court 233 Wis. 2d 15.6 Findorff, required whether Findorff was entitled to was to decide judge of after "the court of a substitution remanded a circuit court decision" reversed and Id., ¶ 2. The decision turned on Findorffs favor. on remand directed the court's instructions whether 808.08(3) § proceedings" or a "further under Wis. Stat. 808.08(1). § duty purely under ministerial 801.58(7) § Wisconsin Stat. reads: judgment upon upon appeal If an from a or order or a writ 808.08(2)] [e.g., § appellate a new trial or error the court orders any parties all of the in a or order as to or modifies manner such proceedings that further in the trial court are 808.08(3)], may necessary [e.g., any party request file a under (1) days filing judge] after the [for substitution of within sub. request another the remittitur in the trial court whether or not prior appeal the time the or writ of error was taken. was filed added). 808.58(7) (emphasis Wis. Stat. correctly ruled subsection The court proceedings" "required (3) ordering the cir- "further — — thereby giving discretion," its to exercise
cuit court *18 right the In the course of of substitution. Findorff a court said: decision, the Findorff view comports the traditional today with [0]ur decision re discretion on often has some a circuit court mandate in by addressed a matters not mand to resolve Fullerton that mandate. consistent with a manner 478, 483, 80 N.W.2d Torborg, 274 Wis. Co. v. [Lumber (1957)]. Fullerton, specifically court stated In this that: entry particular the of a mandate directs
aWhere
proceed
court to
duty of the trial
judgment,
it is the
however,
may,
deter-
trial court
directed. The
as
of
open, and
the absence
any matters left
mine
legal
awith
directions,
generally
vested
specific
action,
inconsistent
not
to take such
discretion
court, as seems wise
upper
the order of
with
the circumstances.
proper under
and
ministerial
purely
is limited
"Specific
Id.
action"
providing
for
preference
court's
to reflect this
duties
remand.
on
circuit court with discretion
¶
428,
2d
25.
233 Wis.
Findorff,
appeals
present
the court of
¶
case,
In the
language
above-quoted
incorrectly
from
took the
applied
in a different
it
and Fullerton
Findorff
appeals
"The mandate
stated:
The court
context.
simply
supreme
'reversed
in this case
appeals'
and remanded
court of
decision
2d
III, 288 Wis.
Tietsworth
to the trial court."
matter
added).
(emphasis
II did
However, Tietsworth
¶ 14
The court of
court.
to the circuit
"remand" the case
not
opportunity
open
appeals
left
"The mandate
added:
warranty
pursue
contract
III,
"[W]e
claims." 2d authority
grant
conclude the trial court retained
granted
and,
Tietsworth's motion
in fact, should have
added).
reopen."
(emphasis
Id.,
motion to
especially
startling
40. What is
about the court
appeals'
decision is that it misstated the mandate of
giving
court,
construed the mandate as
the circuit
reopen
court "discretion" to
a case dismissed on the
implicitly gave
right
merits, and
Tietsworth a
of sub-
stitution as well. In sum, the court of
Tietsworth II into little more than an
turned
advisory opinion.
recognize.
To vindicate such action would be "to
. .
power
naught
judgments
to set at
of this court."
Kurath,
¶ 41. When courts intend to remand the *19 proceedings case for action or under Wis. Stat. § 808.08(3), they normally issue mandates like the following:7
"We therefore reverse the decision of the court of
appeals and remand the cause to the circuit court for
further proceedings not inconsistent with
opinion."
this
County
R.,
Brown
v. Shannon
160,
2005 WI
286
2dWis.
278, 324,
"The decision of the
appeals
reversed,
court of
is
and the cause is remanded to the circuit court for
further proceedings
consistent
opinion."
with this
Schanke,
Mitchell Bank
13,
v.
2004 WI
571,
268 Wis. 2d
619,
116 County "The Jackson Circuit is remanded to the is and cause Court reversed proceedings court further consistent with circuit for Fisher, 44, 2d opinion." v. 2006 WI 290 Wis. this State 149, 121, 714 N.W.2d affirmed, is appeals
"The of the court of decision court for further the case is remanded to the circuit and Mark, State v. opinion." accord with this proceedings 78, 1, 28, 2d 718 N.W.2d90. 2006 WI 292 Wis. appeals court is
"The decision of the reversed to the circuit court for further the cause remanded v. opinion." with this State proceedings consistent Brown, 594, 636, 100, Wis. 293 2d 716 N.W.2d WI is affirmed in
"The decision of the court of is remanded to the part; part, reversed in cause proceedings further consistent with circuit Bay v. Area Visitor & opinion." Megal this Green Bureau, 98, 162, WI 2d 274 Wis. Convention 181-82, 682 N.W.2d857. proceed- further
"Reversed and cause remanded for opinion." Rogers ings consistent Johnson v. with 421, Inc., Hosp., Wis. 2d 2005 WI Mem'l N.W.2d27. II in Tietsworth C. Relevant Language II in read 42. Our mandate line in the above-cited cases. like the mandate line nothing *20 line issue It not like the mandate at did read Fullerton: "Judgment reversed, and cause remanded opinion." in accordance with this further proceedings Fullerton, like the 274 488. It did not read Wis. at 16, line at issue in 1997, mandate September Findorff: remanded direc- and cause with reversed "Judgment 117 by (preceded lengthy, paragraph). tions" a final detailed See 428, 233 Wis. 2d 37. Findorff, ¶ 43. The mandate in II states, Tietsworth "The Appeals decision of the Court of reversed." is Tietsworth II, 270 2d at 172. This mandate is clear: the appeals decision of the reversed, court affirm- thus ing the circuit court's dismissal of entire action. mandate order does not or direct or trial instruct the proceedings. court to take further action or There is no reference to a remand. had If wanted we to allow trial court to specified action,
take further we would have as much in the mandate or clear in the directive text of the opinion. opinion
¶ 45. If search we for aid in constru- ing mandate, we find further evidence that upon reversing ap- that, court intended the court of peals, paragraph this case would be In 2 ended. "[t]he II, Tietsworth stated we circuit dis- missed the entire action for failure state a claim." added). (emphasis II, Wis. 2d paragraph again, In we stated "The Milwaukee County granted Harley's Circuit Court.. . dis- motion, missing entirety complaint in its for failure to state added). (emphasis Id., ¶ a claim." These statements understanding reflect this court's that the circuit court dismissed the entire action Therefore, on the merits. when this court reversed the court of without remand, it affirmed the circuit court's dis- missing the entire action.
¶ In II, her dissent in Tietsworth Chief Justice acknowledged stating Abrahamson as much. After "[t]his case comes to us on a motion to dismiss complaint," "[t]he id., ¶ 48, the Chief Justice added that majority opinion plaintiffs' complaint," dismisses the *21 ("The dis- majority opinion 48 id., also 94; see ¶ ("The dis- majority 49 this claimand misses .")(cid:127) . . . claim the second misses II, and 37 Tietsworth Paragraphs his con- recognize" "explicitly claims Tietsworth which they context in which read claims, must be tract the end of a are near These paragraphs appear. loss doctrine of the economic discussion 15-paragraph of the of this court's version a specific part and describe interpreted are id., They fairly 23-37. See doctrine. ¶¶ application court's explanation as this effect, In fraud claims.8 doctrine to economic loss the economic that, although recognized simply have a claims, may plaintiffs bars tort loss doctrine claims.9 in contract remedy following language to assert on the Tietsworth relies contract- pursue any potential Tietsworth to
this court allowed claims: based alleged warranty such, plaintiffs remedies for the have As addition, rem- motorcycles. there are contract In in their
defects plaintiffs equity were the extent that law and in edies at motorcycles... . fraudulently purchase their induced to exception recognize to the short, an reason to In we see no dispute to contract this consumer doctrine to allow economic loss misrepresentation ... The tort. remedied as an intentional he may contract remedies—breach have may not contract/warranty and restitution —but or rescission having premised misrepresentation on pursue a tort claim for motorcycles. allegedly purchased defective II, 36-37. 2d ¶¶ 270 Wis. Judge County Circuit Court agree with Milwaukee We statements: Guolee's totality of Now, very I read the clear here when I think it is grant language by Judge Sykes not a that this was
the decision at claims. When we look of these claims or amendment allow these D. Clarify To Mandate Option *22 48. Tietsworth contends that he believes para 37 of Tietsworth II invited the circuit 36 and graphs court to allow amendment of his complaint. This con tention is implausible because Tietsworth's initial ac tion after was to appeal file an entirely lawsuit, new 2004, e.g., instead of to amend the seeking If original complaint. Tietsworth believed the mandate favored reopening case, he should filed have (Rule) motion under Wis. § Stat. 809.14 to clarify effect of our mandate or a motion for reconsideration (Rule) under § Wis. Stat. 809.64.10 See Johann v. Milwaukee Elec. Tool Corp., 270 573, 579, Wis. 72 (1955) N.W.2d 401 that (finding where finds party any decision, paragraph her warranty remedy that included the language preceded by exception was discussion of the Huron Tool to the Economic Loss Doctrine. major Supreme This is a issue that has been before the Court controversy this, and there's been some on the economic loss really doctrine. talking That was what she was about. The Court exception apply case, [Huron noted that the did not to this Tooll alleged pertained because the quality fraud to the character and of goods subject that were the of the matter of the contract. The following paragraph warranty stated as such. The have remedies. Now, by saying this, warranty these remedies were never brought up by plaintiff or addressed the Court. The Court simply implying was that economic loss doctrine would not bar plaintiff these bring claims .. . not that the would be allowed to them. 10 (Rule) (Motions) Wisconsin Stat. 809.14 provides, "A party seeking an order or other relief in a case shall file a motion for the order or other relief... ." (Rule) (Reconsideration)
Wisconsin Stat.
809.64
provides,
party may
"A
seek
reconsideration of the
opinion
or
proper
in the
or
mandate the
opinion
ambiguity
the court
issued
to raise the issue is before
place
State ex rel.
court);
trial
and not before the
mandate
Crosby,
Fire
Co. v.
Lisbon Town
Ins.
240 Wis.
v. Township
State ex rel. Blackdeer
(1942);
N.W.2d
(Ct.
Levis,
252, 260,
App.
2d
1993).11 because procedure 49. Parties should follow re it scarce promotes finality protects judicial the man sources the court issued by permitting Blackdeer, 2d date 176 Wis. any ambiguity. to resolve Cf. at 260 n.4.
E. Rule General *23 a it is to state discussion, From this possible the In the order in rule. absence of remand
general
by
filing
court
a motion under s. 809.14
supreme
days after the date of the decision of
reconsideration within 20
supreme
court."
11
For
clarify
file
to
a mandate.
Parties often
these motions
Garcia, 2004
in
& Medical Center v.
example,
Hospital
Kenosha
137,
359,
462, plaintiffs
2d
filed a
WI
276 Wis.
688 N.W.2d
upon
asking
clarify
to
"the
motion in this court
us
directions
Hospital
allowed to
remand as to whether Kenosha
should be
Metropolitan
In
discovery
support
further
to
its claim."
conduct
Associates,
174,
Ventures,
23,
2d
2007 WI
299 Wis.
LLC v. GEA
502,
clarify
this court
the issues
727
asked
to
N.W.2d
any
arguments
needless
about
on remand to eliminate
Ventures,
Associ
holdings in
LLC v. GEA
Metropolitan
court's
ates,
71,
393,
In Hardware
291
2d
121 mandate line or some other clear directive from the appellate ultimately deciding appeal, a trial judgment court whose or final order has been affirmed by appellate authority court on the merits has no reopen complaint. general the case for an amended This designed compliance appellate rule is assure with the long-established court's decision. It conforms to the principle judgment that "a of a trial court when af by legal judg firmed this court becomes in effect the power ment of this court and the trial court has no vacate or set it Co., aside." Hoan v. Journal 241 Wis. (1942).12 483, 6 485, N.W.2d 185 Policy F. Interests holding today
¶ 51. Our furthers the interests in finality, efficiency by holding parties fairness, and re- sponsible strategy for their deliberate choice of preventing piecemeal litigation. compli- It also enforces judicial system. Corp. ance within the See Ins. Am. v. 12 holding This is consistent with jurisdic the rule in other See, Abraham, e.g., Watkins, Nichols, tions. Madeksho v. & (Tex. Friend, 2003) 679, App. S.W.3d 695-96 (holding that judgment where "the of the trial simply affirmed, court is there (limited otherwise) no any 'jurisdiction' reinvestiture of or court"); the trial Comm'n, v. Fair Griset Political Practices (Cal. 2001) (holding P.3d unqualified affirmance ordi narily sustains litigation; therefore, and ends trial jurisdiction court did not have to reopen case once supreme final); court's decision became Waterhouse v. Iowa Dist. Ct. for (Iowa 1999) Linn County, 593 N.W.2d (holding *24 directing absence of remand proceedings further court, in trial jurisdiction of district court parties terminates both as and subject matter when district has been af firmed); see also Oxley, State ex rel. Frazier & L.C. v. Cummings, (W.Va. 591 S.E.2d 2003); Barker, 728 Corp. Ins. Am. v. 628 (Del. 1993). A.2d 38
122
(Del. 1993).
holding pro-
Barker,
A.2d
The
finality by preventing
Tietsworth
the interest
tects
having
Sutter, 69
another "kick at the cat." See
from
2d at 715.
indicates that Tietsworth has
record
litigation
many
commenced
kicks so far. Tietsworth
had
heard
time,
Since that
his action has been
in June 2001.
court,
in the court of
times in the circuit
two times
two
appeals,
times
this court. Tietsworth
and now two
2004, in the circuit
action,
filed a second
also
by
preclusion.
counsel,
claim
His
court that was barred
representing overlapping plaintiffs,
another class
filed
Jones, that
dismissed for failure to state a
action,
was
appealed.
to con-
claim, but not
To allow Tietsworth
effect as
claims would have the same
tinue with new
allowing
party
file a claim after the statute of
a
finality
expired:
predictability
has
limitations
might
jeopardized, and
evidence
be stale.
would be
litigation
Sutter,
stated in
"It is desirable
As we
Sutter,
an end."
the case to opinion The instructed the duration of the covenant. reversed, "The is lower court as follows: remanded for a determination the trial the cause court of the extent of time as to which restrictive respect operations in covenant with to defendant's necessary plaintiffs Clintonville is reasonable and for judgment enjoining protection, and defendant from for a breach thereof." Id. at 480. Upon judge remand, the trial court refused damages, stating, [the
to establish the amount of "If supreme damages court] wanted me to also establish testimony suppose [it] I and take would have said a new granted purpose determining trial is for the dam- ages." holding reversed, Id. at 481. This court that the damages trial court should have established because motion was not inconsistent with this stated, court's mandate and This "The directions. may, any however, trial court determine matters left open, specific and in directions, the absence of generally legal vested with a discretion to take such upper action, not inconsistent with the order of the proper court, as seems circum- wise under the stances." Id. at 483. may distinguished
¶ 55. Fullerton be from this higher case one as where court did not resolve all pertaining specifically issues to the claim and remanded proceedings. the case to the trial court further In following Fullerton, this court had mandate issued appeal: "Judgment reversed, in the first and cause proceedings remanded in accordance with for further opinion." Torborg, Fullerton Lumber Co. v. 270 Wis. (1955) added). (emphasis 133, 148, 70 N.W.2d585 clear, therefore, mandate was that this court intended authority in to vest the trial court to take further proceedings. This court could have mandated further proceedings case, in this but it chose not to do so. *26 addition, In in 56. court's reversal open any II did not leave unresolved issues Tietsworth argues in that his as Fullerton. Tietsworth contract- However, based claims remain unresolved. these claims allege he chose not do not remain unresolved because original pleadings plead- them in his or to amend the ings in while the case was still the trial court. There- part fore, these claims were not of this action. argues
¶ 57. Tietsworth also that the trial court authority reopen should have the case and allow the pleadings amendment of the because this court's reversal II, in which affirmed the trial court's dis- Tietsworth complaint, judg- missal of the did not constitute a final "[a]fter Sutter, ment on the merits. In we stated that final judgment appeal, has been rendered or directed on ordinarily power the trial court has no to allow the pleadings." Sutter, 2d amendment of See 69 Wis. at ruling Tietsworth that seeks Sutter finality principle apply does not this case because this equal judgment does not a final on the court's reversal However, merits. a dismissal for failure to state a claim judgment Square Corp. is a on merits. See Juneau v. Bank, 673, 686, First Wis.Nat'l Wis. 2d 364 N.W.2d (Ct. 1985) App. (citing Dep't Stores, Federated Inc. (1981)); Moitie, v. 452 U.S. 399 n.3 Medved v. cf. (1973). Baird, 563, 567, 2d 207 N.W.2d70 58 Wis. suggested ¶ 59. It is that the circuit court's failure prejudice" its dismissal was "with to state whether finality judgment. as to the Of created confusion may willing been course, the circuit court have complaint February or consider an amendment of appealed, However, Tietsworth he March 2002. when any ambiguity, if and resolved there forced the issue any, the circuit court's dismissal was as to whether were prejudice: deemed it to be or without with prejudice. not have been able to with Tietsworth would permis appeal without his claim to the court not his claim with sion if the circuit court had dismissed judgment prejudice, constituting thus a final on 808.03(1) (stating "[a] Stat. final merits. See Wis. may be or a final order of a circuit court right appeals"); appealed matter of to the court of as a Habhegger, App 147, Plourde ex rel. State v. 2006 WI (stating n.2, 2d 720 N.W.2d130 294 Wis. appeal denying party order motion for sum could not *27 mary judgment permission a without because order was order). nonfinal Accordingly, 60. when court reversed II, in the circuit
court of
Tietsworth
it affirmed
judgment.
court's dismissal as a final
See Juneau
Square, 2d at 686. Without an "order" for
Wis.
by
proceedings
in
further
this court
the mandate line or
directive,
in some other clear
the circuit court lacked
authority
statutory
grant
Tietsworth leave to amend
complaint.
Hoan,
his
See
14The circuit court's dismissal of Tietsworth 2004 under the theory preclusion supports claim The court of this conclusion. recognized in that case that this court's dismissal operated judg in II a final Tietsworth's claims Tietsworth as subsequent If in precluded ment and therefore claims. the court judg Tietsworth 2004 did not think our dismissal was a final ment, proceed, it would have allowed Tietsworth to promotes finality in 61. Our decision this matter by holding parties responsible fairness for the con sequences strategy. of their deliberate choices As require Sutter, in does stated "Justice not day Sutter, afforded in be twice their court." 69 Wis. 2d at complaint 719. If Tietsworth had wanted to amend his add substitute claims, or the contract-based he should sought complaint Judge have leave to amend the with early in Tietsworth, Haese 2001 or however, chose strategy appeal a different chose to the dismissal of —he point, opportunity his tort claims. At he waived his complaint his amend the trial court and to assert permission reviewing new cause of action absent from a Printing Luebke, See State court. ex rel. Freeman Co. v. (1967) (stating, 2d 298, 304, 36 appeal 152 N.W.2d861 "An normally from a final would remove the complete appeal case from trial court at the time the perfected."). was argue
¶ 62. Tietsworth cannot that he was not aware contract-based claims at time he filed complaint 28, 2001, the trial court. On June when complaint, Tietsworth first his filed law was well viability established as to the of contract-based claims.15 addition, In his own admission at the oral argument II on November recognized Tietsworth's counsel that contract causes of response question why were In action available. to a he pursue claims, did not explained contract Tietsworth's counsel obligated
that he not was to have one cause of *28 15 Notte, See First Nat'l Bank & Trust Co. Racine v. 97 of (1980) 207, 225, (stating Wis. 2d that a 293 N.W.2d contract fraudulently void party induced is or voidable and a fraudu lently induced to enter into a contract "has the election of either affirming seeking damages"). rescission or the contract and he could have tort and facts, of that action from one set asked action at the same time.16When contract causes of warranty, why Tietsworth's for breach of he did not sue Harley replied he for breach of that had sued counsel {Jones) shortly warranty separate after the in a action that 2001 but dismissed Tietsworth circuit court for to state a Jones failure circuit court had dismissed claim.17 assert, however, that the 64. Tietsworth cannot amending from deterred him his
decision in Jones complaint Tietsworth's add contract-based claims. appeal of notice to the dismissal counsel filed his 16The follows: dialogue occurred as why they then abide their contract COURT: So shouldn't of not a tort cause of action? causes action and very part good question answer That's a and ATTORNEY: you're obligated only . have here is .. not recognized, cause of action. As this court has one give set facts will it's often case that same of multiple I think Your rise to causes of action. year opinion just recognized that it's Honors' you as the case that can have contract claim often arising from set of well as a tort claim the same nothing There's novel that. facts. about dialogue occurred follows: as Counselor, forth COURT: even if there wasn't back and your negotiation, still can't client sue for breach warranty? mean, you negotiate I it he have to it, you? able to use do think he able for breach ATTORNEY: Youwould we would to sue warranty, at and after this case was dismissed level, brought trial court we a lawsuit for warranty, Harley-Davidson up breach of and stood arguments precisely made the same with re- warranty they gard with to our claims made They said, "Ah, your regard to until these claims. motorcycle fails; you're in the until stranded nowhere, you middle of don't have a cause of action warranty," they prevailed upon that. under *29 Tietsworth's claims the same he day tort filed Jones that contract This shows deci- complaint. Tietsworth's sion to rather than amend his appeal, complaint, to was not affected Jones decision. subsequent oral during argument, Adso Tietsworth's why counsel revealed the reason did not pursue contract claims: Tietsworth wanted punitive As Tietsworth's damages. counsel was explaining claim, limitations of a he stated one warranty limitations that "it wipe [would] was out the to ability seek punitive damages."18 When asked whether Tietsworth was seeking punitive damages, counsel re- plied that he was.19 dialogue occurred follows: as Why, why
COURT: would the manufacturer immunize itself by giving warranty.. provide they just . ? a Don't you'd an overt cause of action that otherwise have argue implied? to They provide ATTORNEY: would an overt cause of action under a warranty they unilaterally have issued and they've limitations, whose terms decided with with you you limitations on can what recover and how recover, they wipe your can can out common law claims; they wipe your right pursue can out proceeded claims based on all of their fraud that you simply by giving And, sale a contract claim. example, wipe ability it out would to seek punitive damages. Well, punitive COURT: that's contracts because don't have Wisconsin, damages in but.. . Right ATTORNEY:
19The dialogue occurred as follows: you seeking damages punitive COURT: Are in this case? seeking punitive damages We are not ATTORNEY: in this case. seeking punitive damages? COURT: You were deliberately appears It then that Tietsworth opportu- strategy pursue claims for tort chose a damages. nity punitive a When member recover heavy burden that Tietsworth had observed *30 replied, claims, counsel tort Tietsworth's to establish prove got tough prove. we case to We think can a "We've had knew, therefore, that he chosen it." Tietsworth every right tough strategy. had to choose Tietsworth losing strategy, by doing so, the he risked but opportunity pursue action, he to causes of other consequences. accept the must now
CONCLUSION appeals of and affirm 67. We reverse the court judgment denying Tietsworth's motion the circuit court's litigation reopen this to the When this came before case. II, the in the circuit court and court both grant appeals any authority divested of court of were complaint permis- amend Tietsworth's without leave to II, in Our Tietsworth which sion from this court. decision affirmed the circuit court's dismissal of Tietsworth's complaint entirety, In
in the law of the case. its became line or of a remand the mandate absence order in Tietsworth other clear directive from court some authority reopen II, the case the circuit court had no complaint affirmed for an amended after this court had entirety complaint on the the dismissal of the its merits. appeals
By of court the Court.—The decision is reversed. Well, sorry, misspoke, Honor. are I'm I Your We
ATTORNEY:
fraud,
claim,
law
we are
under
common
damages,
apologize;
seeking punitive
I
I
Your Honor.
misspoke.
(dissen
¶ 68. SHIRLEY S. ABRAHAMSON, C.J.
ting).
parties,
The
court,
the circuit
and the court of
just
appeals ask
what did this court mean in Tietsworth
Harley-Davidson, Inc.,
v.
2004 WI
270 Wis. 2d
(Tietsworth IT),
tion case, that it lacked to do so. The court of reversed the court, circuit holding that the entitled, were aas matter of reopen complaint. law, to and amend their trying majority In to resolve the case, the opinion adopts (apparently interpreting a new rule 808.09), §§ holding "[I]n Stat. 808.08 and as follows: *31 absence of a remand order in the mandate line or some appellate ultimately other clear directive from the court deciding appeal, authority the a circuit court has no to reopen complaint the case for an amended after an appellate court has affirmed the dismissal of the com- plaint entirety Majority op., ¶¶ in its on 2, the merits." majority op., majority opinion ¶ 67. See also 50. The special new, thus devises a rule to reach its result. easy-to-apply ¶ Clear, 71. rules are ma- not nipulable majority opinion's are valuable. The rule, new easy apply, susceptible manipula- however, is not to to past tion, and creates tensions and inconsistencies with precedent.
¶ Moreover, rule is one the this new at and present same time broad to address the facts of the too 1 majority opinion decision The as identifies II, and reading designation. for ease of I will use same the
131 govern fact situations. other and too narrow case recognizes majority opinion this latter Indeed, the majority severely deficiency and curtails of rule. its interpreting language rule its new with undercuts majority opinion. paragraph 32 of the Stat. 808.09 oft-repeated language traditional, endorses This relating power precedential after to a circuit court's rule engulfs replaces appellate and, effect, review holding.2 textual recognizes Paragraph explicitly that a authority carry out the "clear
circuit court has appellate appellate [of court], whether mandate court" and or reversed circuit has affirmed authority, explicit direction, to ad- "also has without open' case, such as 'left in the matters dress collateral entry necessary preparation documents, costs, computational errors, so clerical or and correction of long of the do not undo the decision as these actions appellate no However, there can be amendments court. expressed or conflict with the in the trial court that implied Majority op., appellate court." mandate "may permit words, 32. In other the circuit court contrary not to the decision are amendments which Contrary reviewing appeal."3 the new court on majority opinion, adopted remain matters rule may very discretion and well the circuit court's within pleadings, long they do as include amendment of the so appellate court. conflict with the decision of not Son, v. & Inc. Circuit Court See State ex rel. J.H. Findorff 428, County, Wis. 2d 2000 WI Milwaukee *32 679, Co. v. quoting approved with J.H. Fullerton Lumber N.W.2d (1957) (discussed at Torborg, 461 80 N.W.2d dissent). 13, 14 this 106 and notes of Practice, § Pleading 55:81 Callaghan's & 6A Wisconsin 2005) (citations omitted). (4th ed. majority opinion ¶ 74. In contrast the with and in appeals, with of accord the decision the court I authority the conclude that circuit court retained to implement appellate the court's decision in II open plaintiffs' right pursue that left the to contract and warranty claims. I further conclude that the Tietsworth 808.08(3) §§ II decision falls within Wis. Stat. and (2003-04),4 empower 808.09 which to circuit court reopen proceedings. a case for further Furthermore, 802.09(1) § court, authorizes the circuit its discre- grant plaintiffs to tion, plaint to leave amend the com- pursue warranty to the contract and remedies recognized this court in the Tietsworth II I decision. therefore dissent.
¶ 75. I would remand cause circuit and discretion, it within decide, have its whether granted should be leave under Wis. Stat. 802.09(1) pleadings to amend their raise con- warranty tract claims. organized my
¶ 76. I have discussion this dis- briefly changed as sent follows: Part I looks at the supreme upon nature of court review the creation of the critiques majority court of in 1978. Part II opinion's by applying present new rule it to the case. Part 808.08(3) §§ applies III examines and Wis. Stat. 802.09(1). present to the 808.09 case. Part IV discusses dispositive I conclude that mandate line not of the power review; of the circuit court after the decision is.
h—i ¶ 77. This case must be in the examined context supreme present court's review of decisions 4All references to the Wisconsin statutes are 2003-04 version unless otherwise noted. *33 supreme appeals to the court's of in contrast
court judgments of trial court orders direct consideration is, of 1978, before the creation 1978. Before before directly appeals, review an this court would the court of pre-1978 judgment a If in a or of trial court. order appeal supreme its affirmance of a the court announced judgment, trial or the court's order circuit court order judgment judgment of this the became effect or court.5 granting upon petition a for 1978, 78. Since supreme of
review,6
court
the decision
the
the
reviews
judgment
appeals,
or order of the
of
not the
court
ordinarily affirm a
This court does not
circuit court.7
judgment
final order of a circuit court on review.8
or
Any
be read into the decision
such affirmance must
5
Co.,
485,
241 Wis.
court of and on these appeal circuit and decides whether takes a direct from the court order the court. The to affirm or reverse a or of circuit petition to a the present is here on a review decision of case appeals, bypass. of not certification or court the decision the Although supreme court reviews of remit, is supreme of court is directed to appeals, court back, to the the circuit court record and to send circuit court (unless appeals is to act supreme court's decision further). process by The which the decision mandate of the record, court, along circuit court are re appellate with the to the circuit court is referred to as remittitur. Wis. Stat. turned (Rule) § 809.26. 8 Occasionally petition a a decision of this court on review See, judgment. e.g., affirms circuit order or explicitly court's (1980). Jenich, There, 2d 288 N.W.2d114 State v. an text announced affirmance of circuit court order. expressly line in also stated: "Decision of mandate Jenich reversed; is affirmed." court of order circuit court examining reasoning of this court's decision and the appeals. reading decision of the court of A careful II demonstrates that the decision never *34 explicitly affirmed the circuit court.9 majority opinion conveniently ignores
¶ 79. The upon granting petition that a for review this court does judgment not review a repeatedly or order of circuit court and mistakenly in —and —asserts II this court affirmed the circuit court's complaint. e.g., majority op., See, dismissal of the majority opinion equates ¶¶ 29, 43, Moreover, court's this reversal in Tietsworth II of the decision of (which appeals the court of in turn reversed the circuit dismissal) only court's order of not an with affirmance circuit of the court's dismissal of the tort claims but also plaintiffs' an with affirmance of dismissal of all claims for all time. must be Care taken not to fall for this argument. sleight of Nothing explicitly
¶ 80. in Tietsworth II states affirming that this court is the circuit court's dismissal complaint, affirming of the let alone court that this is complaint the dismissal of the entire for all time. pre- ¶ 81. beware Moreover, of references to our especially regarding case law, the mandate line. directly Before this court reviewed circuit court judgments and and orders formulated mandate lines and decisions to that effect. Before the court also majority opinion supports The its conclusion that this court affirmed the or final order of circuit court snipping pasting phrases and various in Tietsworth II that dismissing describe order of the circuit court as the com plaint entirety, then bootstraps its a conclusion that in reversing the court of "affirmed the circuit judgment dismissing Majority court's op., entire action." ¶ 45. jus- style instructed the manual that different used a acceptable regarding lines. mandate tices and staff Style Supreme Court ¶ 82. The Wisconsin presently that al- in use states Manual Procedures gives though direction, instructions line the mandate body given decision. It states as in the of the are also follows: decision. If it is gives line the court's
The mandate or direction to include further instructions necessary to court, may placed be information another it can be opinion where paragraph or two last action, specific If court is to take easily located. another mentioned. specific court be that a it is essential provides Style an illustra- Manual and Procedures lines, but the use of list of mandate tive, non-exhaustive examples required. set lines not As mandate these *35 majority opinion ¶ illustrate, the at in the forth framing mandate lines varies. of the be taken as the ¶ line cannot 83. The mandate interpretative dispositive The to our decisions. tool along the mandate line. read with decision must be majority opinion's critique ¶ I now to 84. turn present applying case. it to the new rule my part organized ¶ of dissent as I have follows:
(A) requiring rule majority's new critique A application in mandate and the "remand" the word present case. of this rule to (B) requiring majority's new rule critique A of this application directive" and the "some other clear present case. rule to
(C) significance present to the para- case of graph majority 32 in the opinion and the traditional approach case law to a circuit power court's after a appellate decision of an court and their application to present case. A. "Remand" in the Mandate part
¶ holding, majority opinion 86. As of its requires fashions new rule that that the mandate line being state that appellate the cause is remanded or that provide some other clear directive authority order for the reopen circuit court to have pleadings. the case begin for the amendment of I with requirements: the first of these "remand." majority opinion 87. The endows the word "re- magical mand" in powers, spite the mandate line with ordinary of magic require the court's reluctance to the use of phrases words or to command results. (the disposition) 88. The initial line in our simply
Tietsworth II decision states: "Reversed" and the simply mandate line states, "The decision of the court of II, is reversed." Tietsworth 270 Wis. 2d at majority opinion's interpretation 89. The lengthy II turns on these two lines of the majority opinion's reasoning, decision. The and its holding primarily for future cases, rest on this court's omission in Tietsworth II of the words "and cause disposition, remanded" after the initial word of "re- versed," and the court's omission of the same words *36 major- "and cause remanded" in the mandate line. The ity opinion "[i]f [in concludes that we had wanted II] to allow the trial court to take further specified action, we would have as much in the man- Majority op., ¶ date .. . ." 44. the same does not have
¶ "remand" 90. The word process meaning the decision which The as "remit." along appellate the court, with and mandate circuit court returned to the record, are court circuit of Wis. Stat. The last sentence to as remittitur. referred provision § direction to and a remittitur is both a 808.09 gets proceed remittitur. it appellate when court to the circuit "[i]n shall an court all cases It states judgment and to the court below or decision its remit proceed thereupon in accordance below shall the court judgment Stat. See also Wis. or decision." with remittitur). (Rule) supreme (relating The to 809.26 in the mandate "remand" use the word court need not remitted) (that to the is, be returned line the case to further court to take for the circuit court and circuit supplements dis- 808.09 and Section 808.08 action. proceedings after in the trial court further cusses remittitur. Notably, disposition mandate and our 91. plaintiffs prohibit from re- II did not
Tietsworth opening plead complaint the contract to their They recognized. warranty did not ex- we had claims entirety. plicitly dismissed its that the action be order explicitly They dis- a direct that did not entered. missal be penalizes majority opinion Although 92. magic
plaintiffs word did not use the the court because majority opinion line, mandate in the "remand" may recognizes lines be that mandate nonetheless interpretations. open competing Delphic acknowledges majority opinion clarify a filed in this have been motions majority majority op., ¶ Indeed, the mandate, see bringing opinion for not even faults Majority op., clarify ¶ 48. This mandate. motion *37 plaintiffs may criticism misses the mark. One reason the sought they not have clarification is that believed that complaint Tietsworth II allowed them to amend the warranty assert the contract and claims the decision explicitly stated were available. Furthermore, appellate practice procedure court's rules do not explicitly authorize the motion for clarification that the majority opinion Although may embraces. such a motion good responded abe idea and the court has to such they only recognized way pro- motions, are not the ceed.10 Commentary appellate practice
¶ 94. on often complains appellate regard- that decisions are not clear ing anything, happen what, if should when the trial supreme court record and the court's decision are re- Appellate urged turned to the trial court. courts are spell consequences, any, out the if of a decision for proceedings. further majority opinion, In fact, the mandates at 41 of the opinion
which the offers as illustra- 10 suggests The defendant that procedural remedy may be to move the court to reconsider under Wis. Stat. Operating Rules, § 809.64 and the Internal IIJ. In Johann v. Milwaukee Corp., Electric Tool 270 Wis. 72 N.W.2d (without citation) (1955), 401 the court concluded that when (now filing rehearing its motion for a a motion for reconsid eration) party any should have question any raised about remand. Johann does not ambiguity in the speak to a case party which no seeks a motion rehearing or reconsidera arguable tion. It is also remedy party aggrieved of a when a circuit court appellate does not follow a mandate of an court appellate is to seek mandamus in the issued See, e.g., Eggert, Litzen v. 121, 123, decision. 238 Wis. Levis, (1941); Township State ex rel. Blackdeer v. N.W. 382 (Ct. 252, 259, 2d 1993); App. N.W.2d 339 6A (4th Callaghan's Practice, Pleading Wisconsin & 55:82 ed. 2005) (citations omitted). typical that are criticized as not tions, are of mandates helpful.11 meaning mandate line must be 95. The of a *38 accepted by applying generally
deciphered rule of a interpretation: Interpret Thus, in their context. words light interpreted in the text line be the mandate must majority opinion, lengthy decision itself. The of the despite rigid components rule, of its the and formalistic Major- actually agrees interpretive approach. this with attempt apply ity op., ¶ I to it. 47. now Other Clear Directive" B. "Some line include 96. The failure of the mandate to "remand" does not sink the circuit court's the word powers. majority opinion a circuit court to The allows reopen pleadings "in the a case and amend the when line," in of a remand order the mandate absence given directive circuit court "is some other clear from 11 Green, Cracking Interpreting the Code: and Barbara Mandate, Enforcing Appellate Court's Decision and 32 (2002) 393, 394, (discussing the difficulties Stetson L. Rev. deciphering appellate mandates from the involved with announcing helpful appellate "it be courts to that would guidance parties" to the court and to the give clear trial remand). courts, writing that following appellate Green chides lawyers trial courts and sometimes need to look for a "Rosetta According at decipher appellate Stone" to mandates. Id. author, majority opinion the mandate lines set forth in the satisfy clarity recommended in at do not the standards of this article.
Nancy Wanderer, Writing Opinions: Communi- A. Better Candor, Clarity, Style, L. cating with 54 Me. Rev.
(2002), explains appeal "[i]f also the case on is to be remanded, provide court should clear directions way, the trial court should do on remand. In this about what appeals may Id. at 60. subsequent be avoided." added). court" appellate (emphasis Majority op., standard "some other clear directive" is ¶¶ easy not and is apply susceptible manipulation. Tietsworth II did it, 97. As I see this court II, give the circuit court a clear In directive. the court announced that have plaintiffs warranty and contract remedies for the alleged defects in their and did motorcycles not declare that these remedies were barred: such, plaintiffs
As warranty have remedies for the alleged motorcycles. addition, defects in their In there are equity contract remedies at law and in to the extent fraudulently pur- were induced to motorcycles. chase their A fraudulently contract in- voidable; party fraudulently duced is void or induced may to enter a contract affirm the contract and seek damages pursue equitable remedy for breach or *39 and restitutionary damages.... rescission seek The economic loss doctrine does not bar these contract fraudulently remedies for induced contracts.... II,
Tietsworth 270 Wis. 2d 36. ¶ 98. The continued, court that stating although ¶ the plaintiffs are barred from pursuing claims, they tort may have contract remedies: short, recognize
In we see no reason exception to an to the economic loss doctrine to allow this consumer dispute contract to be remedied as an intentional misrepresentation tort. The economic loss doctrine plaintiffs' bars the plain- common-law fraud claim. The may tiffs have contract remedies —breach of contract/warranty or and rescission restitution —but may pursue not a misrepresentation tort claim for premised having purchased allegedly on defective mo- torcycles. II,
Tietsworth 2d 146, 37. ¶ plays majority opinion unpersuasively The 99. lengthy paragraphs importance of these two the down explicitly declared II, in which the in Tietsworth Harley- against plaintiffs claims have viable the that warranty.12 grounded in and contract Davidson majority opinion in a conclu- asserts The 100. simply sory II court was that the Tietsworth fashion saying not bar economic loss doctrine would that the may bring plaintiffs these the claims, not that these majority Majority op., ¶ And does the how claims. opinion give paragraphs do not that these two divine bring opportunity plaintiffs their contract to the paragraphs By just saying "are that two claims? explanation fairly interpreted court's as this application doctrine to fraud the economic loss legal equivalent Majority op., ¶ 47. That's claims." "why" answering query parent a child's with of a I said so." "because paragraphs and 37 I that conclude just fairly just easily as II are as
Tietsworth leaving opportunity interpreted open for the as warranty bring plaintiffs contract and claims. plaintiffs acknowledged that II court "may warranty have contract rem- remedies" and "have added). (emphasis II court The Tietsworth edies" claims Harley- allege Specifically, wanted purchase fraudulently induced class members Davidson express war Harley-Davidson breached motorcycles; defects motorcycles engines were free from ranty that the *40 workmanship at the time of sale and factory in materials and thereafter; Harley-Davidson and period for a of months claims, warranty The first two of these unjustly enriched. was court, by and the contract, explicitly recognized were enrichment, claim, corollary plaintiffs' third unjust is contract claims.
deliberately employed present para- the in tense these graphs, past leaving open tense, not the thus the possibility plaintiffs may pursue that the these claims in the future.
¶ 102. That the mandate line in Tietsworth II explicitly does not remand the cause to the circuit court purpose allowing plaintiffs the to amend the complaint dispel significance does not the of our lan- guage paragraphs in 36 and 37. That the court did not explicitly direct or order a remand or an amendment to pleadings unexpected. plaintiffs the is not did not request complaint. a remand to amend the It is likewise inconsequential provide, that the court did not in the paragraphs preceding mandate, instructions to the plaintiffs regard bringing these claims. The court usually give legal parties does not advice to the and does ordinarily pleadings not address amendments to the parties. unless raised
¶ 103. Under the circumstances of the Tietsworth appellate necessarily II case, an court would not order complaint asserting to file an amended liability these additional theories of and would not likely provide explicit guidance regard amending complaint, might open but it did—leave —and possibility plaintiffs may take the initiative 808.08(3) 802.09(1) §§ under Wis. Stat. to file an complaint. amended majority opinion looking If is for "some pleadings
clear directive" that the amendment of permitted paragraphs remittitur, on 36 and 37 in may Tietsworth II be as clear a directive as the court legitimately provide given actually could the issue be- procedural posture fore the court and the of the case. *41 the Traditional 32 and Paragraph Majority Opinion C. Approach in holding the today by altered 105. Until it was 32), the retained in paragraph case (although
the instant must a circuit court rule was that pre-1978 traditional has the decision but the court's appellate with comply the in as as long action a case to take further authority of the appel- the decision not inconsistent with action is actions included further late court.13 The permissible as long the so amending pleadings, a case and reopening the decision of not conflict with the amendments did that this court Recognizing court. the appellate foreseen or are and that not all circumstances fallible some gave a rule that foreseeable, adopted this court court after an was appeal the circuit flexibility to decided.
13 See, Torborg, 274 Wis. Lumber Co. v. e.g., Fullerton (1957). on part rule was based in Wis. 483-84, 461 This 80 N.W.2d (and statutes), only not predecessor which § Stat. 808.09 its appeal but also may court take on guides appellate the actions an act in accordance with that the circuit court must instructs § Stat. 808.09 rulings on remittitur. Wisconsin appellate court's affirm, modify reverse, or may court appellate that an provides trial; or, appeal is order; if the judgment may or order new order, reverse, affirm, may it or judgment or part from a Stat. judgment or order. Wisconsin modify part all cases an part § "[i]n in relevant 808.09 then states to the court remit its or decision appellate court shall in proceed accordance thereupon the court below shall below interpreted the judgment or decision." Courts have with not judgment" as proceed accordance with language "shall action, long as the ability to take so limiting the circuit court's appellate the decision from the inconsistent with action is not Co., (citing See, at 482-83 Lumber 274 Wis. e.g., court. Fullerton Stat. 274.35(1), statute to Wis. predecessor Wis. Stat. may act on 808.09, that the circuit proposition for the open"). "left matters Citing Torbord, Fullerton Lumber Co. v. (1957), N.W.2d this court has pre-1978 powers
endorsed
view of a circuit court's
post-1978
stating,
cases,
"Where a mandate directs the
*42
entry
particular judgment,
duty
of a
it is the
of the trial
proceed
may,
court
as directed. The trial court
any
open,
however, determine
matters left
and in the
specific
generally
directions,
absence of
vested
awith
legal discretion to take
action,
such
not inconsistent
upper court,
with the order of the
as seems
wise
proper under the circumstances." State ex rel. J.H.
Son,
&
Inc. v. Circuit Court Milwaukee
Findorff
County,
¶30,
25,
428,
2000 WI
233
2dWis.
608 N.W.2d
appeals
similarly
679.14 The court of
has
followed
declaring
Fullerton,
that a circuit
court is bound
(which
the mandate
follow
of the court of
case)
only
in
covered
authority
some issues
but "also has the
any remaining
issues,
to address
unresolved
long
[the
so
as it acts in a mariner consistent with
appellate court's] mandate." Harvest
Bank ROI
Sav.
v.
(Ct. App.
Invs.,
733, 738,
228 Wis. 2d
¶ 107. The to distin- guish stating II, and Fullerton from Findorff prior II, cases, that in the in contrast with Tietsworth the mandate line remanded the cause to the circuit majority op., court. See 55. The court did not Findorff give weight any difference in Findorff vesting Fullerton mandates discretion with the cir- cuit court. See 233 2d at Findorff, 25 n.16. 14 Fullerton, Findorff, In (citing 233 Wis. 2d 274 483), [is] Wis. at the court declared- that the traditional view that a circuit court often has some discretion on remand to resolve matters not addressed a mandate in a manner that mandate. consistent with State, 709, 717, 69 Wis. 2d In Sutter v. (1975), pre-1978 line case, the mandate
N.W.2d "Judgment and cause remanded with stated, reversed judgment not inconsistent with this directions to enter sought opinion." that case On remand judgment their and leave to amend relief from the against plaintiffs, complaint. court held The Sutter authority declaring, to amend "The trial court has no pleadings mandate of this after remittitur with the entry providing specific for the of a directions recognized particular judgment."15 Nevertheless Sutter stating: ironclad, this rule was not permissible are not on remand Generally, amendments After the case was determined on the merits. where appeal, or directed on final has been rendered ordinarily power the trial court has no to allow the *43 ,16 pleadings the ... amendment of key purposes ¶ in Sutter for of the 109. The words "ordinarily." present "generally" The Sutter case are and deliberately "appellate-court-wiggle- court used these signal exceptions reader that room-words" twice to permissible are not exist to the rule amendments appeal on the merits.17 when the was determined 15 distinguished Fullerton Lumber on the The Sutter court entry ground particu that the Sutter mandate directed the of interpreted requiring the mandate as not judgment. lar It Sutter, 2d proceedings. further 69 Wis. 717-18. omitted) added). (citations (emphasis Id. at 717 Luebke, Printing State ex rel. Freeman Co. v. See also (1967) ("An 298, 304, appeal from a final
Wis. 2d 152 N.W.2d861 normally complete remove the case from would appeal perfected.") (emphasis time the was trial court at the added). the traditional II falls within ¶ Tietsworth 110. majority opinion. paragraph The 32 of the rule and plaintiffs open opportunity for the left decision plaintiffs' warranty pursue remedies. contract and our pursuit is consistent with these contract claims of appeals of and the of the court of the decision reversal in the com- tort claims dismissal of the circuit court's plaint. although I
¶ Furthermore, conclude 111. plaintiffs' specifically open con- II left Tietsworth warranty of the court claims, other members tract disagree about what each other with me with opinions and If write the II means. we who Tietsworth meaning agree cannot about the mandates perfectly that the II, understandable it is disagree parties three members and that judge disagree court the circuit with court of import of our decision. about difference of ¶ 112. Inasmuch as substantial opinion II, should not this about Tietsworth exists day giving in court? their err on the side 808.08(3). ¶ § I turn now to Wis. Stat. 113. rHI—IHH § describes, accord- 808.08 Stat. Wisconsin majority opinion ing the circuit at what to the receiving may upon the remittitur do court must or pursuant 808.09. provides in full as 808.08 Wisconsin Stat.
follows: *44 record When the proceedings in trial court.
Further trial court: are received in the and remittitur (1) action, specific to take judge If trial is ordered the possible. do soon as judge shall so as
(2) ordered, court, If a trial is the trial upon receipt new record, place of the remitted shall the matter on the trial calendar. (3) proceedings If action or other than those mentioned (1) (2) ordered, any party
in sub. or may, within one year receipt after by of the remitted record the clerk of court, appropriate trial make motion for further proceedings. proceedings initiated, If further are not so the action shall be except dismissed that an extension one-year period may granted, notice, be on court, trial if the during order for extension is entered one-year period. dispute parties ¶ 116. The between the centers on (3) § subsection § of Wis. Stat. 808.08. Unlike Wis. Stat.
808.08(1) (2), which are addressed to the circuit 808.08(3) § parties. court, is addressed to the Subsec- (3) preserves party's ability tion move circuit (3) proceedings." court for "further Subsection instructs party may appropriate that a "make motion for further proceedings" year, within a or the action will be dis- pursuant missed. The moved the circuit court 808.08(3) § year to Wis. Stat. within a for further proceedings. §
¶ 117. Wisconsin Stat. 808.08 has been in the many years substantially statute books for with language, although same the statute has been renum- bered several times. Chapter
¶ 118. 187, Laws of 1977 renumbered (1975) § § former Wis. Stat. 817.36 as Wis. Stat. 808.08, making only changes statutory language minor in (1975) purposes.18 for clarification Former 817.36 formerly itself was numbered Wis. Stat. 274.36 18Chapter 187, 1977; Laws of legislative 1977 S.B. 1. The Legislative note from the Reference Bureau accompanies change emphasizes that"[i]t contains no substantive *45 (1971). Promulgation Matter In the See of of Wisconsin, 67 Procedure the State Civil Rules for (1975).19 in statutory No 585, change 761 2dWis. court order dated made.20 By supreme was language 1,1965, March former 10, 1964 and effective November (1963) § 274.36 and recreated as repealed was § 274.36 (1965).21 Bureau, Reference 1977 Analysis by Legislative
change." 1, 1, LRB-9037/1, Drafting in Bill File on 1977 S.B. S.B. Bureau, 1 East Legislative Reference at Wisconsin available Street, Madison, Wisconsin. Main
19 17, February 1975 order dated supreme This was 1, 1976, adopted part, in substan January and took effect reorganized governing the rules civil part, tially revised known as Wis comprehensive into a structure procedure incorpo § Procedure. Former 274.36 was Rules of Civil consin chapter into rated wholesale
20 31, Order, March 1971 Court dated Supreme An earlier statutory 1,1971, changes in the July made minor and effective 274.36, ambiguity in the up "to clear an language of former changes were language." 50 2d xvii. No substantive present Wis. effected. 21 (1964). Order, An 25 2d vii Supreme Court Wis. 1964 Goelzer, v. is found Zeidler earlier version of the statute (1926) as follows: N.W. Supreme every appeal Court or on in which
In case in error below, proceedings in the court trial or further shall order a new proceeding had to such court and the record shall be transmitted year such order in the from the date of thereon within one dismissed, Court, shall be Supreme in default thereof the action or unless, shown, It upon good shall otherwise order. cause the court any proceeding duty losing party in action or be the of the shall in the court below is or order in his favor when a opposingparty appeal Supreme Court on reversed reversal, procure record in said pay the clerk's fees on such bring trial the cause to remitted to the trial court and cause to be reversal, year continued unless the same be one after such within do, cause, action shall be dismissed. and if he fail so to his Although my ¶ brief, recitation of the lengthy history of Wis. Stat. 808.08 is sufficient for purposes following of this dissent. I want to make the point: long Section 808.08 has been on the books for a *46 key stating time, but the cases Iwhat call the tradi- power appellate tional rule of a circuit court's after an Sutter) e.g., {see, decision Fullerton and do not rest the § language traditional rule on the of 808.08 or its (or predecessor. §If 808.08 other numbered version of statute) is in cases, mentioned the citation is only passing. rely § in These cases on Wis. Stat. 808.09 predecessor or its statutes. majority opinion
¶ appears In contrast, 120. peg holding power its about the circuit court's to Wis. § majority opinion 808.08, Stat. which the characterizes "plain." Majority op., majority opinion ¶ as 36. The 808.08(3) § triggered states that if and when the appellate court directs or commands or instructs the "specific trial court to take "action" other than the (1) (2), action" or new trial described in subsections and gives examples paragraph and at 41. Although
¶ reasoning primarily 121. it bases its § 808.08(3), majority engage on Wis. Stat. fails to proper interpretation a of this statute. The court 808.08(3) § meaning wrestled with the of in State ex rel. J.H. & Son v. Circuit Court Milwaukee Findorff County, (1999), 233 Wis. 2d 428, 608 N.W.2d679 while 801.58(1). interpreting §§ applying 808.08 and acknowledged by majority opinion, 122. As "specific court drew a distinction between Findorff (1) proceedings," action" and "further in subsections (3) § respectively. Majority op., ¶ of 808.08 It 37. con- (1) "specific cluded that action" in subsection refers to a duty proceed- circuit court's ministerial and "further (3) ings" any proceeding in subsection refers to in which exercise discretion. Findorff, the circuit court will Thiel, In Commitment 442-43. See also re Wis. 2d at of App ¶ 27, 275 Wis. 2d 685 N.W.2d 2004 WI 808.08(3) § (viewing applying default when as (1) (2) acknowledg applies and neither subsection ing nor "specific action" in narrow definition this court's 808.08(1)). According mere recitation Findorff, falls tell us the mandate a mandate does not whether 808.08(1) (3). this determi- Findorff, or Under within requires each case to examination of nation careful perform a circuit court will whether the determine discretionary duty act. Findorff, or a ministerial majority opinion not en- does 2d at 448-49. analysis gage of ministerial and discre- in the careful required by tionary duties as Findorff. majority opinion errs its Moreover, *47 resulting application
interpretation in an Findorff, of 808.08(3). § meaning it, I to As see that all out chokes (3) meaning, give is, that for it not to be subsection parties interpreted superfluous, to be allow it must proceedings in the circuit court further to move for (1) by required is not subsections a circuit court when (2) appellate upon is, an own, its that when to act give about or instructions does not order or direct court (subsec- (1)) (subsection specific or a new trial actions (3) (2)). triggered is words, In subsection tion other (1) fall within subsections the mandate does not when (3) (2). mean? else can subsection or What (3) harmoniously be read must 125. Subsection pursu- authority supplied to the circuit with (3) § encom- Subsection thus to Stat. 808.09. ant Wis. namely passes rule, traditional that fall under the cases appellate comply court must with that a circuit authority further to take but has the court's decision long action in a case as not as action is inconsistent (3) appellate with the decision of the court. Subsection parties petition to allows discretionary the circuit court to take these explicitly
actions that are not com- by manded the mandate but are not inconsistent with parties the decision. How else would the implement be able § traditional rule embodied 808.09? majority great opinion expresses ¶ 126. The hor- appeals case, ror at the court of exclaiming decision in the instant "the court of turned advisory opin- Tietsworth II into little more than an Majority op., Wrong! ion." II remains regards plaintiffs' the definitive decision in to the tort claims. The circuit court cannot undo or undermine certainly the initial cannot revive those dismissed claims. The authority, court, however, circuit retains permit discretion, its
within bring warranty recog- the contract and remedies power nized the Tietsworth II court. This is not a " naught judgments 'to set at of this court.'" omitted). Majority op., (quoted ¶ 40 source Underlying majority opinion's ¶ 127. much of the interpretation § of Tietsworth II and Wis. Stat. 808.08 public policy finality. agree finality is the important. I legislature expressly
Indeed the embraced 808.08(3): finality party bring in Wis. Stat. A must 808.08(3) proceedings year under one within or be legislative forever barred. The court should follow the directive. clearly litigation
¶ It is desirable that come clearly present to an end. But it is also desirable *48 open case that the doors of the courthouse be to purchasers motorcycles consumers, the issue, of the at (in court) very who words of this have valid warranty contract and claims that have not been
152 majority opinion explicitly. should not The barred finality upon point remand when of determine 808.08(3) point explicitly provides § a of Stat. party permits finality: a to move for statute This appellate proceedings with the consistent further present year. plaintiffs opinion in the within one deadline. case met this lengthy despite
¶ Furthermore, this case's yet history, procedural not had their have "day plaintiffs have never had the in court." The fabled present complaints opportunity to a the consumer to jury. judge aor majority opinion plain- denies the 130. That the day merits of their claims in court on the
tiffs their concepts justice clear and the conflicts with basic favoring policy access to the courts of modern law adjudication of cases on their merits.22 examining II, the tradi- After appel- power an circuit court's after rule about a tional policy § public 808.08, and the decision, Wis. Stat. late finality, the circuit court has the author- I conclude that 808.08(3) paragraphs ity, pursuant 36 and 37 of plaintiffs' reopen II, case to consider Tietsworth amending pleadings. IV 802.09(1), may party 132. Under Wis. Stat. any stage the circuit court at seek leave of judgment, including proceedings, amend the after Products, Inc., See, 2d v. La Crosse 198 Wis. e.g., Gaddis Yellick, Schlumpf v. (1996); 2d 407, 94 Wis. 396, 542 N.W.2d (1980). 288 N.W.2d *49 pleadings freely given any stage "and shall leave be at added).23 justice requires" (emphasis the action when so provides Wisconsin Stat. 802.09 in part: relevant (1) party may party's pleading A Amendments. amend the a once as any matter of course at time within 6 months after the summons complaint scheduling and are filed or within the time set in a order party may pleading only by
under s. 802.10. Otherwise amend the by party; leave of court or written consent of the adverse and leave freely given any stage justice shall be at of the action when so requires. party plead response pleading A shall in to an amended days pleading, within after service of the amended or within 20 days proceeding after the service if the is to or otherwise foreclose (a) security interest, enforce a lien or unless the court otherwise (b) responsive pleading required permitted orders or no or under 802.01(1). s. (2) by Amendments to If conform to the evidence. issues not raised pleadings by express implied parties, the are tried or consent of the they respects they shall be treated in all ifas had been raised in the pleadings. pleadings may necessary Such amendment of the as be may cause them to conform to the evidence and to raise these issues upon any party any time, judgment; he made motion of at even after but failure to so amend does not affect the result of the trial of these objected ground If issues. evidence is to at the trial on the that it is by pleadings, may not within the issues made the the court allow the pleadings freely presenta- to be amended and shall do so when the thereby tion merits of the action will be subserved and the objecting party satisfy fails to court that admission of such prejudice party maintaining evidence would such in the action or upon may grant defense the merits. The court a continuance to objecting party enable the to meet such evidence. (3) Relation back of amendments. If the claim in asserted pleading transaction, occurrence, amended arose of the or event set attempted original pleading, forth or to be set forth in the filing original amendment relates back to the date of the of the pleading. changing against party An amendment whom a claim foregoing provision and, is asserted relates back if the is satisfied period provided by commencing within the law for the action against party, party brought such to be amendment has received such notice of the institution of the action that he or she prejudiced maintaining merits, will not be a defense on the that, concerning knew or should have known but for a mistake identity proper party, brought the action would have been against parly. such majority opinion ¶ 133. Because the concludes authority reopen did that the circuit court not have purposes complaint, the case for of amendment of the unnecessary its discussion of Wis. Stat. 802.09 is irrelevant.
¶ I 134. Because conclude that the circuit court power has under II and Wis. Stat. 808.08(3) § reopen question case, to I reach the 802.09(1) power the circuit court's under Wis. Stat. grant complaint. leave to amend their App
¶ Allison, In Mach 11, 135. v. 2003 WI 686, 766, Wis. 2d 656 N.W.2d the court of any stage concluded that the words "at of the action" in present exactly they say, having statute mean what previous application retained the statute's to amend- judgment." Mach, ments "before or after 259 Wis. 2d ¶ 23. Mach held that "the . statement. . that a may grant amend, trial court a motion to either before judgment, or after is still a correct statement [Wjhether law.. . . the amendment is before or after bearing justice requires." does have a on what According Mach, Mach, 259 Wis. 2d timing bringing of the motion and the for not it reason sooner are relevant factors for a circuit court to con- determining justice requires. sider in what ¶ 136. Because the circuit court did not exercise present its discretion under Wis. Stat. in the 809.02 case, I would remand the cause to the circuit court to disagree I exercise its discretion. with the court of appeals, permitted plead- which the amendment of the ing as a matter of law. The statute commits the decision whether to allow amendment to the circuit court's discretion.
¶ 137. I would remand the to the cause circuit apply exercising court to Mach its discretion. I forth, set conclude that 138. For the reasons majority opinion erred as a have
the circuit court declaring that the circuit court matter of law in present power reopen the case for case does not have pleadings. I therefore dissent. amendment of the I authorized to state that Justices ANN am join BRADLEY and N. PATRICK CROOKS WALSH opinion.