Plaintiff
can't assert new claims
By
David Ziemer
david.ziemer@wislawjournal.com
July
23, 2007
| What
the court held Case:
Tietsworth v. Harley-Davidson, Inc., No. 2004AP2655. Issue:
Can a plaintiff amend his complaint after an appellate court has affirmed a dismissal
by the circuit court? Holding:
No. Absent
a clear directive to act, the circuit court has no jurisdiction to reopen the
case for amendment of the complaint. Attorneys:
For Appellant:
Warshafsky, Ted M.; Crivello, Frank T., II; For Respondent: Binder, Robert L.;
Parsons, W. Stuart. |
Unless
the remand order provides a clear directive, a circuit court has no authority
to reopen a case, after the appellate court affirmed its dismissal, the Wisconsin
Supreme Court held on July 12.
In
2001, Steven C. Tietsworth filed a proposed nationwide class action against Harley-Davidson,
Inc., alleging problems with the design, manufacture, and sale of a particular
model of motorcycle.
Tietsworth’s
causes of action included: (1) a violation of sec. 100.18 (the “Decep-tive
Trade Practices Act” or “DTPA”); (2) negligence; (3) strict products
liability; and (4) common-law fraudulent concealment.
Tietsworth
did not allege breach of contract or any warranty claims.
The
trial court dismissed the action, but the court of appeals reversed. Tietsworth
v. Harley-Davidson, Inc., 2003 WI App 75, 261 Wis. 2d 755, 661 N.W.2d 450 (Tiets-worth
I).
The
Supreme Court granted review, and reversed the court of appeals, holding that
the economic loss doctrine bars the tort claims. The court wrote, “The plaintiffs
may have contract remedies — breach of contract/warranty or rescission and
restitution — but may not pursue a tort claim for misrepresentation premised
on having purchased allegedly defective motorcycles.” Tietsworth v. Harley-Davidson,
Inc., 2004 WI 32, par. 37, 270 Wis. 2d 146, 677 N.W.2d 233 (Tietsworth II).
Upon
remittitur to the circuit court, Tietsworth moved the trial court to reopen the
matter pursuant to sec. 808.08(3), and for leave to amend the complaint pursuant
to sec. 802.09, in order to pursue contract and warranty remedies.
The
circuit court denied the motion, and dismissed the complaint. Tietsworth appealed,
and the court of appeals reversed, holding that the trial court could reopen the
case allow an amended complaint.
Tietsworth
v. Harley-Davidson, Inc., 2006 WI App 5, 288 Wis.2d 680, 709 N.W.2d 901 (Tietsworth
III).
The
Supreme Court again accepted review, and reversed the court of appeals, in a decision
by Justice David T. Prosser, Jr. Chief Justice Shirley S. Abrahamson dissented,
in an opinion joined by Justices Ann Walsh Bradley and N. Patrick Crooks.
The
majority noted that, either the court of appeals or the Supreme Court could have
directed the circuit court to grant leave to amend the complaint. Instead, the
majority concluded that, when Tietsworth II was decided, the decision became the
law of the case, and without a clear directive, no lower court could grant leave
to amend the complaint.
Section
808.09 provides in relevant part, “In all cases an appellate court shall
remit its judgment or decision to the court below and thereupon the court below
shall proceed in accordance with the judgment or decision.”
The
court concluded that while a circuit court must carry out the mandate, and may,
without explicit direction, address collateral matters left open, such as costs,
“there can be no amendments in the trial court that conflict with the expressed
or implied mandate of the appellate court.”
The
court also concluded that the trial court had no authority to permit amendment
of the pleadings pursuant to sec. 808.08(3), because it is limited to cases in
which the appellate court orders “action or proceedings.”
The
court cited numerous remand orders from other cases in which the case “is
remanded to the circuit court for further proceedings consistent with this opinion
(or similar language),” and observed, “our mandate line in Tietsworth
II read nothing like the mandate line in [those cases].”
Instead,
it read only, “The decision of the Court of Appeals is reversed.” Tiets-worth
II, 270 Wis.2d at 172.
The
court concluded, “This mandate is clear: the decision of the court of appeals
is reversed, thus affirming the circuit court’s dismissal of the entire action.
The mandate does not order or direct or instruct the trial court to take further
action or proceedings. There is no reference to a remand.”
Further,
the court noted that, pursuant to Rule 809.14, parties may move the appellate
court to clarify the effect of a mandate, if it is ambiguous, but the plaintiff
did not do so in this case.
The court
set forth the following general rule: “In the absence of a remand order in
the mandate line or some other clear directive from the appellate court ultimately
deciding the appeal, a trial court whose judgment or final order has been affirmed
by the appellate court on the merits has no authority to reopen the case for an
amended complaint.”
Before
concluding, the court looked to policy interests, and concluded its decision furthers
the interests of finality, fairness and efficiency.
In
this case, the court found that plaintiffs’ counsel made a deliberate choice
to seek tort claims, rather than contract claims, because of the ability to obtain
punitive damages in tort, and now must accept the consequences of that choice.
Accordingly,
the court reversed.
Justice
Abrahamson dissented, concluding, “Clear, easy-to-apply rules that are not
manipulable are valuable. The majority opinion’s new rule, however, is not
easy to apply, is susceptible to manipulation, and creates tensions and inconsistencies
with past precedent.”
Stating,
“the mandate line is not dispositive of the power of the circuit court after
review; the decision is,” the dissent noted that nothing in Tietsworth II
explicitly states that the Supreme Court was affirming the dismissal of the complaint.
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David
Ziemer can be reached by email.
