Amendment
Case Analysis
July
23, 2007
The
result in this case is consistent with prior precedent, but the reasoning goes
far beyond it.
The
court could have resolved the issue solely with reference to Sutter v. State,
69 Wis.2d 709, 233 N.W.2d 391 (1975).
In
Sutter, the plaintiff alleged breach of contract, and was awarded judgment in
the trial court. The Supreme Court reversed, and remanded with directions to enter
judgment in favor of the defendant. Upon remittitur, the plaintiff moved to amend
its action to allege a tort claim — misrepresentation in the inducement to
the contract.
The
circuit court denied the motion, and on a second trip to the Supreme Court, the
court affirmed the circuit court’s decision not to allow the amendment, reasoning,
“Reversal in the interest of justice is not required in this case. ... The
plaintiffs were represented by competent counsel. ... All questions of law and
fact were available to the plaintiffs. No inadvertent mistake was made, but a
deliberate choice of strategy taken. Justice does not require that plaintiffs
be twice afforded their day in court.” Sutter, 233 N.W.2d at 396.
The
court of appeals in the case at bar distinguished Sutter, because the case in
Sutter went to trial, while this case “never proceeded past a complaint,
dismissal, and seemingly unending appellate proceedings.”
However,
the principle in Sutter is the same. All questions of law and fact were available
to the plaintiff, but instead of pursuing them all, the plaintiff made a deliberate
choice to pursue only the tort and statutory remedies.
Thus,
the Supreme Court could have held that, having deliberately eschewed contract
remedies that it knew were available, justice cannot possibly require allowing
the plaintiff to amend its complaint, several years after the original complaint
was filed to pursue claims that it strategically thumbed its nose at earlier.
Instead,
the court cited this policy consideration only for further support near the end
of its opinion.
The
heart of the court’s opinion is that the circuit court lacked jurisdiction
even to consider the motion to amend the complaint.
The court
notes that, when an appeal is entered from a final order, the court issuing the
order loses jurisdiction. Absent a clear directive to consider substantive issues,
jurisdiction over such issues never returns.
Sutter
did not go so far; instead, the court merely affirmed a discretionary decision
by the circuit court not to permit amendment of the complaint.
Thus,
while the result is consistent with Sutter, it goes far further, because the court
in Sutter never questioned whether the circuit court could have permitted amendment
of the complaint, but only held that justice did not require it.
Fortunately
for parties and lower courts that will grapple with the new jurisdictional rule
in the future, the court did cite numerous cases from other jurisdictions that
have previously adopted the rule, in footnote 12 of the opinion: Madeksho v. Abraham,
Watkins, Nichols, & Friend, 112 S.W.3d 679, 695-96 (Tex. App. 2003); Griset
v. Fair Political Practices Comm’n, 23 P.3d 43, 51 (Cal. 2001); Waterhouse
v. Iowa Dist. Ct. for Linn County, 593 N.W.2d 141, 142 (Iowa 1999); State ex rel.
Frazier & Oxley, L.C. v. Cummings, 591 S.E.2d 728 (W.Va. 2003); and Ins. Corp.
of Am. v. Barker, 628 A.2d 38 (Del. 1993).
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here for Main Story.
David
Ziemer can be reached by email.
