Wis. Stat. § 802.06

Section 802.06(2)(f) requires a court deciding a motion to dismiss for failure to state a claim to accept pleaded facts for that purpose, while leaving the plaintiff to prove them at trial.

Anderson v. Continental Insurance · filed 1978-10-31(2)(f)

The motion to dismiss, like a demurrer, admits the facts that are pleaded, but only for the purpose of testing whether a claim was stated and whether relief could be granted upon those facts if such facts are proved. Neither a demurrer nor a motion to dismiss admits facts for purposes of trial.

Section 802.06(2) applies demurrer standards to motions to dismiss for failure to state a claim: the court asks whether the alleged facts, if proved, would support relief.

Hartridge v. State Farm Mutual Automobile Insurance Co. · filed 1978-11-28(2)

Since motions to dismiss under sec. 802.06(2), Stats., serve basically the same purpose as demurrers, the preceding rules on demurrers are equally relevant to matters involving sec. 802.06(2) motions and should be held to apply to them. It is not the function of this court on review to consider whether the $8,000 lost profits can be proved or whether the assignment to Dr. Hartridge is valid under the circumstances, but rather whether the facts alleged, if they were proved, state a claim upon which relief can be granted.

Section 802.06(2) allows dismissal for failure to state a claim; the motion serves the same function as a demurrer, so the complaint receives reasonable inferences in its favor and its pleaded facts are assumed true.

Stefanovich v. Iowa National Mutual Insurance Co. · filed 1978-11-28(2)

A motion to dismiss for failure to state a claim upon which relief can be granted under sec. 802.06(2), Stats., serves the same function formerly served by a demurrer. In ruling on a demurrer, a complaint should be liberally construed with a view to achieving substantial justice and a complaint is entitled to all reasonable inferences in its favor. In testing the complaint, the trial judge must assume that the facts pleaded are true.

Section 802.06(2) replaces the demurrer with a motion to dismiss for failure to state a claim, to which the rules for reviewing demurrers apply.

Keller Ex Rel. Monson v. Welles Department Store of Racine · filed 1979-01-26(2)

Since a motion to dismiss for failure to state a claim upon which relief may be granted has replaced the demurrer, Judicial Council Committee’s Note, 1974 to sec. 802.06(2), Stats., the rules relating to demurrers are applicable to the new pleading.

Section 802.06(2)(f) requires courts to accept pleaded facts as true when deciding a motion to dismiss for failure to state a claim.

Morgan v. Pennsylvania General Insurance · filed 1979-02-27(2)(f)

For the purpose of testing whether a claim has been stated pursuant to a motion to dismiss under sec. 802.06 (2) (f), Stats., the facts pleaded must be taken as admitted.

Section 802.06(2)(f) requires denial of a motion to dismiss when the complaint leaves open facts under which the plaintiff could recover.

General Split Corp. v. P & v. ATLAS CORP. · filed 1979-06-29(2)(f)

Considering the complaint alone, the issue cannot be resolved; the allegation itself does not foreclose the plaintiff from establishing that the contract required the defendant to charge only what the utility would charge. ... We conclude the motion to dismiss was properly overruled.

Section 802.06(2)(f) requires courts deciding a motion to dismiss to construe a complaint or counterclaim liberally and draw reasonable inferences in its favor.

Halker v. Halker · filed 1979-12-04(2)(f)

A motion to dismiss for failure to state a claim upon which relief can be granted under sec. 802.06(2), Stats., serves the same function as a demurrer under the former rules of civil procedure and our court has ruled that a complaint or counterclaim is entitled to all reasonable inferences in its favor. Thus, the trial court, when ruling on a demurrer or a motion to dismiss a complaint or counterclaim should liberally construe the complaint or counterclaim with a view to achieving substantial justice.

Section 802.06(2)(f) allows dismissal for failure to state a claim only when the complaint, liberally construed with its reasonable inferences, cannot support recovery.

Starobin v. Northridge Lakes Development Co. · filed 1980-02-07(2)(f)

The motion to dismiss for failure to state a claim, like the previously used demurrer, tests the legal sufficiency of the claim. The facts pleaded' and all reasonable inferences from the pleadings are admitted to be true, but only for purpose of testing the legal sufficiency of the claims, not for the purpose of trial. The pleadings are to be liberally construed with a view to substantial justice to the parties.

On a motion to dismiss for failure to state a claim, the court accepts pleaded facts as true and does not require the plaintiff to prove them.

Leitner v. Milwaukee County · filed 1980-02-07(2)(f)

While this may in fact be true, the plaintiff was not required at the pleading stage to prove that the zoo was operated for profit or gain.

Section 802.06(2)(f) tests whether a complaint states a legally sufficient claim, treating pleaded facts and reasonable inferences as true for that purpose.

Ollerman v. O'Rourke Co., Inc. · filed 1980-02-07(2)(f)

The motion to dismiss for failure to state a claim, like the previously used demurrer, tests the legal sufficiency of the claim. The facts pleaded and all reasonable inferences from the pleadings are admitted to be true, but only for the purpose of testing the legal sufficiency of the claim, not for the purpose of trial.

Section 802.06(2)(f) tests whether a complaint states a legally sufficient claim; on a motion to dismiss, the pleaded facts and reasonable inferences are taken as true.

Scarpaci v. Milwaukee County · filed 1980-06-03(2)(f)

The motion to dismiss for failure to state a claim, like the previously used demurrer, tests the legal sufficiency of the claim. The facts pleaded and all reasonable inferences from the pleadings are admitted to be true, but only for purpose of testing the legal sufficiency of the claim, not for the purpose of trial.

Section 802.06(2)(c) tests the legal sufficiency of a claim, treating pleaded facts and reasonable inferences as true for that purpose.

Ziemann v. Village of North Hudson · filed 1981-06-30(2)(c)

The defendants brought motions to dismiss the complaint for failure to state a claim upon which relief can be granted. Sec. 802.06(2) (c), Stats. 1979-80. The motion to dismiss for failure to state a claim tests the legal sufficiency of the claim. The facts pleaded and all reasonable inferences from the pleadings are admitted to be true, but only for purpose of testing the legal sufficiency of the. claims, not for the purpose of trial.

Section 802.06(2)(f) requires a complaint to survive a motion to dismiss if the alleged facts, if proven, would support a claim for relief.

Tower Special Facilities, Inc. v. Investment Club, Inc. · filed 1981-09-22(2)(f)

A complaint will be upheld against a motion to dismiss for failure to state a claim upon which relief can be granted when the facts alleged, if proven, would constitute a claim for relief. ... We determine that the facts alleged, taken to be true, do not state claims based on malicious prosecution or abuse of process.

Section 802.06(2)(f) requires a court deciding whether a complaint states a claim to accept its pleaded facts as true.

Quesenberry v. Milwaukee County · filed 1982-03-30(2)(f)

This case is before us on a dismissal of the complaint for failure to state a claim upon which relief can be granted, pursuant to sec. 802.06(2) (f), Stats. 1979-80. For purposes of determining whether a claim for relief has been stated, the facts pleaded in the complaint must be accepted as true.

Section 802.06(2)(f) governs motions to dismiss for failure to state a claim; a summary judgment motion aimed solely at whether stipulated facts establish a claim is treated as such a motion.

La Fleur Ex Rel. Blackey v. Mosher · filed 1982-11-02(2)(f)

This case is before the court on summary judgment, based on stipulated facts. But because the only purpose of the motion is to determine whether a claim for relief has been established by these facts, it is more in the nature of a motion to dismiss for failure to state a claim upon which relief can be granted. Sec. 802.06 (2) (f), Stats. 1979-80.

Section 802.06(2) motions to dismiss for failure to state a cause of action test the legal sufficiency of the complaint under the standards formerly applied to demurrers.

State v. Wisconsin Telephone Co. · filed 1979-10-09(2)

We have held that a motion to dismiss for failure to state a cause of action under sec. 802.06 “is the same as the purpose of the old demurrer — to test the legal sufficiency of the claim.”

Section 802.06(3) permits a motion to dismiss to raise the legal effect of a claimant’s presentation of claims.

Gutter v. Seamandel · filed 1981-06-30(3)

The issue of the legal effect of the plaintiffs’ purported presentation of claims may properly be raised by a motion to dismiss, sec. 802.06(3), Stats., Armes v. Kenosha, County, 81 Wis.2d 309, 313-314, n. 6, 250 N.W.2d 515 (1977), or by a motion for summary judgment, “where, as here there is no disputed question of fact that would be material on the issue of the construction of a written document.” Pattermann v. Whitewater, 32 Wis.2d 350, 359, 145 N.W.2d 705 (1966).

On a motion to dismiss for failure to state a claim, the complaint's factual allegations are accepted as true, but its legal conclusion of negligence is not.

Sanem v. Home Insurance Co. · filed 1984-06-27(2)(f)

Because this case involves a dismissal pursuant to § 802.06(2) (f), Stats., the factual allegations in the complaint must be accepted as true, while the legal conclusion of negligence need not be accepted as true.

Section 802.06(2)(f) requires courts to take pleaded facts as admitted when deciding a motion to dismiss for failure to state a claim.

Evans v. Cameron · filed 1985-01-03(2)(f)

However, to determine if a complaint should be dismissed for failure to state a claim upon which relief can be granted pursuant to a motion under sec. 802.06(2) (f), Stats., the facts pled are taken as admitted.

On a motion to dismiss for failure to state a claim, the court takes the pleaded facts and all reasonable inferences as true.

State v. Mauthe · filed 1985-04-30(2)(f)

In testing whether a complaint fails to state a claim pursuant to a motion under sec. 802.06(2) (f), “[t]he facts pleaded and all reasonable inferences from the pleadings must be taken as true. . . .” Morgan v. Pennsylvania General Ins. Co., 87 Wis. 2d 723, 731, 275 N.W.2d 660 (1979).

Section 802.06(2)(f) permits a motion to dismiss to raise whether the court has power to grant the requested relief.

In RE MARRIAGE OF BOHMS v. Bohms · filed 1987-06-25(2)(f)

A motion to dismiss under sec. 802.06(2)(f), Stats., properly raises the issue of the power of the court to make the requested order.

When testing whether a complaint states a claim, the court accepts the pleaded facts and all reasonable inferences as true.

Schwartz v. Federated Realty Group, Inc. · filed 1988-12-22(2)(f)

In so doing, we bear in mind that when testing the sufficiency of a complaint, the facts as pled and all reasonable inferences therefrom, are accepted as true.

A complaint fails to state a claim under § 802.06(2)(f) if the defendant is immune from liability for the alleged conduct.

Energy Complexes, Inc. v. Eau Claire County · filed 1989-12-20(2)(f)

This court has held that the complaint fails to state a claim upon which relief may be granted if the defendant is immune from liability for the activity alleged in the complaint.

A motion to dismiss for failure to state a claim tests the legal sufficiency of the complaint, with the pleaded facts and reasonable inferences accepted as true.

American Medical Transport of Wisconsin, Inc. v. Curtis-Universal, Inc. · filed 1990-03-22(2)

"The purpose of the motion to dismiss for failure to state a claim is to test the legal sufficiency of the complaint."

Section 802.06(2)(f) tests the legal sufficiency of the pleadings; a party must allege facts rather than rely only on legal conclusions.

Lamb v. Manning · filed 1988-06-30(2)(f)

However, a party still has the duty to put facts at issue because a motion for judgment on the pleadings, like a motion to dismiss for failure to state a cause of action under sec. 802.06(2)(f), tests the legal sufficiency of the pleadings.

A motion to quash an alternative writ of mandamus is treated as a motion to dismiss under § 802.06(2), testing whether the petition alleges a cause of action.

State Ex Rel. Richards v. Foust · filed 1990-10-04(2)

This is because a motion to quash is treated as a motion to dismiss the complaint under sec. 802.06(2), Stats. ... The issue presented on the motion is whether the facts alleged in the petition for the alternative writ state a cause of action under the public records statute. ... We therefore affirm the trial court's denial of the motion to quash.

Section 802.06(2)(f) permits dismissal for failure to state a claim only when the pleaded facts, taken as true, clearly allow no recovery.

Harris v. Kritzik · filed 1992-01-07(2)(f)

The circuit court granted Stanley's motion to dismiss Harris' claim for failure to state a claim upon which relief can be granted. Section 802.06(2)(f), Stats. "The purpose of a motion to dismiss for failure to state a claim is to test the sufficiency of the complaint." Evans v. Cameron, 121 Wis. 2d 421, 426, 360 N.W.2d 25, 28 (1985). When judging the complaint, the facts pleaded are deemed to be true. Id. Moreover, in light of the policy of liberal construction of the pleadings, "a claim will be dismissed only if `it is quite clear that under no conditions can the plaintiff recover.'" Id. (citation omitted).

A contract complaint alleging an offer, performance of its terms, and a resulting contract states a claim under § 802.06(2)(f).

Leitzke v. Magazine Marketplace, Inc. · filed 1992-04-09(2)(f)

The first issue which the court must address is whether the complaint can survive a sec. 802.06(2)(f), Stats., motion to dismiss for failing to state a claim upon which relief can be granted. ... We conclude that Leitzke's first cause of action states a claim but that his second cause of action does not.

Under § 802.06(2)(f), a complaint states a claim when its alleged facts, accepted as true, support a legally available form of relief.

Friendship Village of Greater Milwaukee, Inc. v. City of Milwaukee · filed 1993-12-21(2)(f)

In reviewing a sec. 802.06(2)(f) motion, this court accepts the alleged facts as being true and decides any legal conclusions without deference to the trial court. ... Because sec. 74.35, Stats., is not the exclusive manner by which the plaintiffs had to proceed, and because a declaratory judgment action was properly maintainable, we conclude that the plaintiffs have stated a claim for which relief can be granted.

On a motion to dismiss for failure to state a claim, pleaded facts are taken as admitted and inferences are drawn in favor of the opposing party.

Heinritz v. Lawrence University · filed 1995-05-09(2)(f)

To determine whether a complaint states a claim upon which relief can be granted pursuant to a motion under § 802.06(2)(f), Stats., the facts pled are taken as admitted and inferences are drawn in favor of the party against whom the motion is brought.

On a motion to dismiss for failure to state a claim, the court assumes the complaint’s facts are true and considers only those facts.

Larson v. City of Tomah · filed 1995-06-07(2)(f)

In deciding a motion to dismiss a complaint for failure to state a claim upon which relief can be granted, see sec. 802.06(2)(f), Stats., the facts set forth in the complaint are assumed to be true, Wandry v. Bull's Eye Credit, 129 Wis. 2d 37, 39, 384 N.W.2d 325 (1986), and are the only facts to be considered.

On a motion to dismiss for failure to state a claim, the court takes the pleaded facts as admitted.

Hermann v. Town of Delavan · filed 1996-12-27(2)

In determining whether a complaint should be dismissed for failure to state a cause of action upon which relief may be granted, the facts pled are taken as admitted.

Section 802.06(2)(a)6 requires courts deciding whether a complaint states a claim to take the pleaded facts as admitted.

Hermann v. Town of Delavan · filed 1998-01-23(2)(a)6

In determining whether a complaint should be dismissed for failure to state a claim upon which relief may be granted, the facts pled are taken as admitted.

On review of a motion to dismiss for failure to state a claim, the court accepts the alleged facts as true and decides legal issues without deference to the trial court.

Mose v. Tedco Equities—Potter Road Ltd. Partnership · filed 1999-06-22(2)(f)

In reviewing a § 802.06(2)(f), Stats, motion, we accept the alleged facts as being true and decide any legal issues without deference to the trial court.

On a motion to dismiss for failure to state a claim, courts accept alleged facts and reasonable inferences as true but decide legal conclusions independently.

Tri City National Bank v. Federal Insurance · filed 2003-12-09(2)6

We accept all alleged facts and reasonable inferences as true, but draw all legal conclusions independently.

Section 802.06 permits dismissal for failure to state a claim, but the court assesses the complaint's allegations without requiring proof that the plaintiff can establish them.

Peterson v. Volkswagen of America, Inc. · filed 2004-03-31

In assessing the sufficiency of the complaint, the court does not evaluate whether the plaintiff can prove the allegations of the complaint.

On review of a dismissal for failure to state a claim under § 802.06(2), the court accepts the complaint's factual allegations as true.

De Ruyter v. American Family Mutual Insurance · filed 2004-07-07(2)

When a case is before us on the circuit court's order dismissing the complaint for failure to state a claim pursuant to Wis. Stat. § 802.06(2) (2001-02), ... we accept the facts alleged in the complaint as true for purposes of our review.

Section 802.06(2)(a)6 permits dismissal when a complaint fails to state a claim on which relief can be granted.

John Doe 67C v. Archdiocese of Milwaukee · filed 2005-07-13(2)(a)6

It is "quite clear" that Doe's pleadings fail to state a claim on which relief could be granted, see Wis. Stat. § 802.06(2)(a)6, and we affirm the decision of the court of appeals.

Section 802.06(2) motions for failure to state a claim test the legal sufficiency of the complaint.

Meyers v. AG · filed 2006-05-09(2)

The purpose of a motion to dismiss pursuant to Wis. Stat. § 802.06(2) for failure to state a claim upon which relief can be granted, is to test the legal sufficiency of the complaint.

Section 802.06(2)(a)6. permits dismissal when a complaint fails to state a legally sufficient claim; the court accepts the complaint’s allegations as true when reviewing the dismissal.

Szukalski v. Crompton Corp. · filed 2006-09-26(2)(a)6.

A motion to dismiss a complaint for failure to state a claim tests the legal sufficiency of the pleading. ... In reviewing a dismissal for failure to state a claim, we, like the trial court, must accept as true the allegations of the plaintiff's complaint.

Section 802.06(6) requires pleadings to be liberally construed with a view toward substantial justice.

Jares v. Ullrich · filed 2003-06-25(6)

Pursuant to Wis. Stat. § 802.06(6), pleadings are to be liberally construed with a view toward substantial justice to the parties. ... Chubb's reading of the Jareses' complaint is contorted and hypertechnical. A fair reading of the allegation is that the misrepresentation about the animal infestation caused the damage.

On a motion to dismiss for failure to state a claim under § 802.06(2)(a)6, courts accept factual allegations as true but do not accept legal conclusions.

Daniel v. Armslist, LLC · filed 2019-04-30(2)(a)6

"When we review a motion to dismiss, factual allegations in the complaint are accepted as true for purposes of our review. However, legal conclusions asserted in a complaint are not accepted, and legal conclusions are insufficient to withstand a motion to dismiss."

Section 802.06(2)(a)6 requires each plaintiff to plead a claim supported by that plaintiff's own interest.

Pagoudis v. Keidl · filed 2023-04-04(2)(a)6

While the circuit court, the court of appeals, and the parties view the issue in this case as one of standing, we conclude that the question here is really whether each plaintiff, based on the plaintiff's unique interest in the Property, has sufficiently pled any claim upon which relief can be granted pursuant to Wis. Stat. § 802.06(2)(a)6.

Section 802.06(2) requires a court deciding a motion to dismiss for failure to state a claim to determine whether the complaint states a claim upon which relief can be granted.

Prah v. Maretti · filed 1982-07-02(2)

In deciding a motion for summary judgment the initial question is the same as that on a sec. 802.06(2), Stats. 1979-80, motion to dismiss the complaint for failure to state a claim upon which relief can be granted, namely, whether the complaint states a claim upon which relief can be granted.

When materials outside the pleadings are presented and not excluded on a motion to dismiss for failure to state a claim, § 802.06(2) requires the motion to be treated as one for summary judgment.

Denny v. Mertz · filed 1978-06-30(2)

Both of the defendants’ motions to dismiss the complaint were made pursuant to sec. 802.06(2) (f), Stats. 1975, for failure to state a claim upon which relief could be granted. ... In this case a number of affidavits and exhibits were “. . . presented to and not excluded by the trial court.” These affidavits and exhibits appear in the record. We find most of this material irrelevant to the issue on this appeal, but a copy of the allegedly defamatory article was attached to one of these affidavits and will therefore be considered.

Section 802.06(2)(f) treats a motion to dismiss for failure to state a claim as a summary judgment motion when the court considers matters outside the pleadings.

Kania v. Airborne Freight Corp. · filed 1981-01-06(2)(f)

A motion to dismiss, pursuant to sec. 802.06(2) (f), Stats., supported by matters outside the pleadings, i.e., testimony and affidavits, is to be treated as one for summary judgment under sec. 802.-02.

Section 802.06(2) requires a motion to dismiss raising failure to state a claim or res judicata to be treated as a summary judgment motion when the court considers matters outside the pleadings.

Heinz Plastic Mold Co. v. Continental Tool Corp. · filed 1983-06-07(2)

The motion to dismiss is treated as one for summary judgment and disposed of as provided in sec. 802.08, Stats., because the motion asserts defenses under sec. 802.06(2) (f) and (h) and matters outside the pleadings were presented to and not excluded by the trial court in considering the motion.

Section 802.06(2) treats a motion to dismiss as one for summary judgment when the court accepts matters outside the pleadings.

Radlein v. Industrial Fire & Casualty Insurance · filed 1984-03-27(2)

The motion to dismiss was presented pursuant to sec. 802.06(2), [2] and upon the court receiving and accepting an affidavit on behalf of Industrial's attorney and documents from a previous court action, the motion converted to one for summary judgment. Therefore, though the trial court stated it was granting a motion to dismiss, it was actually a motion for summary judgment that was granted.

Section 802.06(2) permits a court to treat a motion to dismiss for failure to state a claim as a motion for summary judgment.

Martin v. TOWER INS. CO., INC. · filed 1984-04-17(2)

Tower, without answering, moved to dismiss the complaint for failure to state a claim upon which relief could be granted. The trial court, as allowed by sec. 802.06(2), Stats., considered Tower’s motion as one for summary judgment and ordered Martin’s complaint dismissed. Since the trial court in effect determined that there was no genuine dispute of any material facts and that Tower was entitled to judgment as a matter of law, we will consider its order as a judgment.

A motion to dismiss may be treated as one for summary judgment when the trial court accepts affidavits.

Pawlisch v. Barry · filed 1985-09-03(2)

The trial court originally treated this motion as one for summary judgment and accepted affidavits. ... We therefore treat this as a summary judgment review and examine the affidavits to determine whether a defense that would defeat the plaintiff’s claim has been made.

When a motion to dismiss under § 802.06(2) is converted to summary judgment, the court must modify its summary judgment methodology.

Green Spring Farms v. Kersten · filed 1985-12-12(2)

When a motion to dismiss is converted to a motion for summary judgment, the standard methodology must be modified.

Section 802.06(3) requires a reasonable opportunity to present pertinent material before a motion for judgment on the pleadings is treated as one for summary judgment.

Hillcrest Golf & Country Club v. City of Altoona · filed 1986-12-09(3)

Although a motion for judgment on the pleadings may be treated as a motion for summary judgment, a court must first provide all parties with a reasonable opportunity to present pertinent material. Sections 802.06(3) and 802.08, Stats. Because Hillcrest has not had an opportunity to respond to Ayres’ affidavit, summary judgment would be premature.

Section 802.06(2) treats a motion to dismiss for failure to state a claim as a motion for summary judgment when matters outside the pleadings are presented to the court.

M & I Marshall & Ilsley Bank v. Town of Somers · filed 1987-11-04(2)

Under sec. 802.06(2), Stats., a motion to dismiss for failure to state a claim shall be treated as a motion for summary judgment under sec. 802.08, Stats., if matters outside of the pleadings are presented to the court. Because matters outside of the pleadings were presented to the court in this case, the decision whether to dismiss for failure to state a claim is treated appropriately as though it was a decision to grant summary judgment.

Section 802.06(3) treats a motion to dismiss as a summary judgment motion when the court accepts and considers matters outside the pleadings.

Hammer v. Hammer · filed 1987-11-19(3)

If a motion to dismiss is filed under sec. 802.06, Stats., and matters outside the pleadings are presented and accepted by the court for its consideration, the motion is considered a motion for summary judgment.

Section 802.06(3) requires a motion to dismiss to be treated as one for summary judgment when matters outside the pleadings are presented to and not excluded by the court.

Reel Enterprises v. CITY OF LAW CROSSE · filed 1988-09-29(3)

The trial court properly treated defendants’ motion to dismiss as one for summary judgment. When defendants moved to dismiss the complaint, matters outside the pleadings were presented to and not excluded by the trial court. Under these circumstances the motion to dismiss must be treated as one for summary judgment. Sec. 802.06(3), Stats.

Section 802.06(2) allows a motion to dismiss to be treated procedurally as a motion for summary judgment when affidavits are filed in opposition.

Petro v. D.W.G. Corp. · filed 1989-01-10(2)

Because affidavits were filed in opposition to the defendants’ motion to dismiss, this matter is treated procedurally as though the motion were for summary judgment.

Section 802.06(2) requires a motion to dismiss for failure to state a claim to be treated as a summary judgment motion when the court considers matters outside the pleadings.

Brown v. LaChance · filed 1991-09-17(2)

Pursuant to sec. 802.06(2), Stats., we treat this motion as a motion for summary judgment.

Section 802.06(2) permits a motion to remain a motion to dismiss when the parties present no matters outside the pleadings.

Esser Distributing Co. v. Steidl · filed 1988-05-04(2)

Although the trial court’s decision labeled it a motion for summary judgment, we note that the summary judgment motions were filed by the third-party defendants and are unrelated to the issues before us. Steidl’s motion was one to dismiss, and neither Steidl nor the plaintiffs presented matters outside the pleadings regarding this motion. See sec. 802.06(2), Stats. We therefore will refer to it as a motion to dismiss.

Section 802.06(3) does not treat legislative history as a matter outside the pleadings that converts a motion for judgment on the pleadings into one for summary judgment.

Freedom From Religion Foundation, Inc. v. Thompson · filed 1991-09-26(3)

We agree with this result, but for a different reason. The phrase "matters outside the pleadings" should not be read so broadly so at to include items of legislative history, which do not concern evidentiary facts and which could be introduced without supporting affidavits.

A motion to dismiss is treated as a motion for summary judgment when the trial court considers matters outside the pleadings.

Dane County v. McCartney · filed 1992-01-22(2)

Although the trial court's decision is described as a dismissal for failure to state a claim, the trial court actually decided the issue as a motion for summary judgment under sec. 802.06(2), Stats., because it considered facts outside of the pleadings. Section 802.06(2) provides that a motion to dismiss shall be treated as a motion for summary judgment where the trial court considers matters outside of the pleadings. Therefore, we apply the standard of review applicable to summary judgments.

Section 802.06(3) requires a motion for judgment on the pleadings to be treated as a motion for summary judgment when the court considers matters outside the pleadings.

Carlson v. Pepin County · filed 1992-02-25(3)

Although the county's motion was one for judgment on the pleadings, the trial court decided the motion as one for summary judgment under sec. 802.06(3), Stats., because it considered matters outside of the pleadings. Section 802.06(3) provides that a motion for judgment on the pleadings shall be treated as a motion for summary judgment where the trial court considers matters outside of the pleadings.

Section 802.06(2) treats a dismissal based on matters outside the complaint as a grant of summary judgment.

Heyden v. Safeco Title Insurance · filed 1993-03-30(2)

Where, as here, a trial court's dismissal is based on matters in addition to the complaint, the dismissal is, in effect, a grant of summary judgment as to the dismissed party, sec. 802.06(2), Stats., and our review is de novo.

A motion to dismiss under § 802.06(2) converts to a motion for summary judgment when the court receives and considers the parties’ affidavits.

Johnson v. Johnson · filed 1993-10-06(2)

Although the motion to dismiss was initially presented pursuant to sec. 802.06(2), Stats., the motion was necessarily converted to one for summary judgment upon the court receiving and considering the affidavits of the parties.

Section 802.06(3) treats a motion to dismiss as a motion for summary judgment when the court considers material outside the pleadings.

State v. Edlebeck · filed 1995-09-06(3)

Although the State contends that the trial court made no mention of summary judgment in its decision and did not engage in the analysis typically required, the court treated the motions to dismiss as motions for summary judgment.

Section 802.06(3) treats a ruling as one for summary judgment when the court considers facts outside the pleadings.

Johnson v. Holland America Line-Westours, Inc. · filed 1996-11-26(3)

Because the trial court considered facts outside the pleadings, we treat the ruling as one for summary judgment. Section 802.06(3), Stats.

Section 802.06(2)(b) permits a motion to dismiss for failure to state a claim to be treated as a summary judgment motion when supported by affidavits or other evidentiary material.

Nierengarten v. Lutheran Social Services of Wisconsin · filed 1997-03-25(2)(b)

Because LSS accompanied its motion to dismiss for failure to state a claim with affidavits and other evidentiary material, the trial court was entitled to treat the motion as one for summary judgment.

When the circuit court considers affidavits and deposition transcripts on a motion to dismiss, § 802.06(2)(b) permits the motion to be treated as one for summary judgment.

L.L.N. v. Clauder · filed 1997-05-23(2)(b)

However, since the circuit court accepted and considered affidavits and deposition transcripts submitted by both parties, we treat the motion as one for summary judgment. See Wis. Stat. § 802.06(2)(b); L.L.N. v. Clauder, 203 Wis. 2d 570, 575 n.2, 552 N.W.2d 879 (Ct. App. 1996).

Section 802.06(2)(b) requires a court to treat a motion to dismiss as a motion for summary judgment when the parties rely on matters outside the pleadings.

State v. Dunn · filed 1997-09-18(2)(b)

However, when matters outside of the pleadings are relied on by the parties, a court shall treat it as a motion for summary judgment.

Section 802.06(2)(b) requires a motion to dismiss for failure to state a claim to be treated as a summary judgment motion when matters outside the pleadings are presented and not excluded.

Nierengarten v. Lutheran Social Services · filed 1998-07-01(2)(b)

However, because LSS attached affidavits in support of the motion, the circuit court, as well as the court of appeals, were required to treat the motion as one for summary judgment in accord with Wis. Stat. § 802.06(2)(b)(1993-94).

Section 802.06(2) requires a motion to dismiss for failure to state a claim to be treated as a summary judgment motion when matters outside the pleadings are presented to the court.

Schwab v. Timmons · filed 1999-02-12(2)

Under Wis. Stat. § 802.06(2) (1995-96), a motion to dismiss for failure to state a claim shall be treated as a motion for summary judgment under Wis. Stat. § 802.08 (1995-96), if matters outside the pleadings are presented to the court. ... In this case, matters outside of the pleadings were presented to the court which converted the motion to dismiss to one for summary judgment.

Section 802.06 excludes materials outside the pleadings from review of a dismissal when the circuit court did not accept them for consideration.

Doe v. Archdiocese of Milwaukee · filed 1997-06-27

In reviewing an order of dismissal under Wis. Stat. § 802.06, we will not consider matters outside the pleadings not accepted by the circuit court for its consideration. Thus, we do not consider affidavits filed with BBB Doe's brief opposing the defendants' motions to dismiss.

Section 802.06(3) permits a motion to dismiss supported by material outside the pleadings to be treated as a motion for summary judgment; without such material, the court decides the motion on the complaint alone.

Barry v. Maple Bluff Country Club · filed 1998-09-03(3)

Although it is possible to submit evidentiary material outside of the pleadings in support of a motion to dismiss for failing to state a claim, which motion may then be treated as a motion for summary judgment, no such documents were attached to, or submitted in support of, the motion to dismiss under consideration here. Therefore, the issues presented on this appeal must be decided solely on the basis of the amended complaint.

Section 802.06(3) allows a motion to dismiss to be treated as a motion for summary judgment when the court considers matters outside the pleadings.

Wisconsin Conference Board of Trustees of the United Methodist Church, Inc. v. Culver · filed 2001-05-31(3)

While the circuit court resolved this case by granting the Elo trustees' motion to dismiss and denying the Conference's motion for summary judgment, the circuit court considered matters outside the pleadings in deciding the motion to dismiss. We thus treat the motion as one for summary judgment and the circuit court's judgment as one entered upon the grant of that motion. See Wis. Stat. § 802.06(3); Schwab v. Timmons, 224 Wis. 2d 27, 35, 589 N.W.2d 1 (1999).

Section 802.06(3) requires treating a dismissal ruling as summary judgment when the circuit court considers matters outside the pleadings.

Rabideau v. City of Racine · filed 2001-06-12(3)

The City filed a motion to dismiss for failure to state a claim upon which relief could be granted. We agree with the court of appeals that because the circuit court considered matters outside the pleadings, the case should be treated as a review of a grant of summary judgment pursuant to Wis. Stat. § 802.06(3) Rabideau, No. 99-3263, unpublished slip op. at 3 (Wis. Ct. App. June 7, 2000).

Section 802.06(2)(b) requires a motion to dismiss to be treated as a motion for summary judgment when materials outside the pleadings are submitted.

Bammert v. Don's SuperValu, Inc. · filed 2002-07-03(2)(b)

Some of the record items from the administrative and judicial proceedings in Bammert I were put into the record on the motion to dismiss in this case, by way of an affidavit from Don's counsel. Accordingly, the motion to dismiss should have been treated as a motion for summary judgment pursuant to Wis. Stat. §§ 802.06(2)(b) and 806.08.

Section 802.06(2)(b) requires a court converting a motion to dismiss into a summary judgment motion to notify the parties and give them a reasonable opportunity to present relevant material.

CTI OF NORTHEAST WISCONSIN, LLC v. Herrell · filed 2002-12-17(2)(b)

We agree with CTI that the statute requires notice of conversion and an opportunity to present countervailing evidence.

When parties present matters outside the pleadings on a motion to dismiss, § 802.06(3) requires the motion to be processed as one for summary judgment.

Gielow v. Napiorkowski · filed 2003-11-26(3)

We further observe that when the parties present matters outside the pleadings on a motion to dismiss, the motion shall be processed as one for summary judgment.

When a court converts a motion to dismiss into a summary judgment motion under § 802.06(2)(b), it must notify the parties and give them a reasonable opportunity to present relevant material.

Finch v. Southside Lincoln-Mercury, Inc. · filed 2004-05-20(2)(b)

We note that when a court converts a motion to dismiss for failure to state a claim into a motion for summary judgment pursuant to Wis. Stat. § 802.06(2)(b), the court must notify the parties of its intent and provide them a reasonable opportunity to present material made pertinent by Wis. Stat. § 802.08.

Section 802.06(2)(b) does not convert a motion to dismiss into a summary judgment motion when the court excludes material outside the pleadings.

Peterson v. Volkswagen of America, Inc. · filed 2005-05-27(2)(b)

Therefore, there is a reasonable inference from the record that the circuit court excluded the affidavit for purposes of Volkswagen's motion. As such, we will continue to treat the motion as one for judgment on the pleadings and not one for summary judgment.

Section 802.06(3) treats a motion for judgment on the pleadings as one for summary judgment when the court considers matters outside the pleadings.

Affordable Erecting, Inc. v. Neosho Trompler, Inc. · filed 2005-07-06(3)

While Neosho's motion was for dismissal, a motion confined to the pleadings, the circuit court also reviewed affidavits of the parties relating to the claims. Pursuant to Wis. Stat. § 802.06(3) (2003-04), ... when "on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment . . . ."

Section 802.06(3) permits a court to treat a motion for judgment on the pleadings as a summary judgment motion when it considers materials outside the pleadings that exceed the legislative history exception.

Lake Country Racquet & Athletic Club, Inc. v. Morgan · filed 2006-01-26(3)

We conclude that the circuit court properly construed Lake Country's motion for judgment on the pleadings to be a motion for partial summary judgment. This is because Lake Country does not oppose the State's submissions, and we construe these as exceeding the legislative history exception to Wis. Stat. § 802.06(3) stated in Freedom from Religion Foundation.

Section 802.06(3) treats a motion to dismiss as a summary judgment motion when the court relies on information outside the pleadings.

Affordable Erecting, Inc. v. Neosho Trompler, Inc. · filed 2006-06-09(3)

Although the circuit court granted Neosho's motion to dismiss, because the court relied on information outside the pleadings, like the court of appeals, we review the circuit court's decision as a grant of summary judgment in favor of Neosho.

Section 802.06(2)(b) provides for summary judgment review when the court considers materials beyond the pleadings in deciding a motion to dismiss.

Kreckel v. Walbridge Aldinger Co. · filed 2006-07-19(2)(b)

Furthermore, the court expressly employed summary judgment methodology in its ruling. Under these circumstances, the proceedings are reviewed as summary judgment. See Wis. Stat. § 802.06(2)(b) (2003-04).

Section 802.06(3) calls for a motion to dismiss to be treated as a summary judgment motion when the parties present matters outside the pleadings.

Converting/Biophile Laboratories, Inc. v. Ludlow Composites Corp. · filed 2006-08-23(3)

When, on a motion to dismiss, parties present matters outside the pleadings, the motion should be processed as one for summary judgment.

Section 802.06(2)(b) allows a court to convert a motion to dismiss into a summary judgment motion before the defendant files an answer.

ALLIANCE LAUNDRY SYSTEMS LLC v. Stroh Die Casting Co. · filed 2008-11-19(2)(b)

We hold, therefore, that § 802.06(2)(b) creates an exception to the general rule that pleadings must be complete before a court can rule on a summary judgment motion.

Section 802.06(2)(b) treats a motion to dismiss for failure to state a claim as a summary judgment motion when the court considers matters outside the pleadings.

Johnson v. Rogers Memorial Hospital, Inc. · filed 2005-07-08(2)(b)

The circuit court, while continuing to refer to the defendants' "motion to dismiss," effectively converted the motions to dismiss into summary judgment motions by considering facts outside the pleadings. ... The lead opinion follows this approach, lead op., ¶¶ 10, 31-51, and so does this concurrence.

Section 802.06(2)(b) treats a motion to dismiss based on the statute of limitations as a motion for summary judgment.

Dakin v. Marciniak · filed 2005-03-08(2)(b)

A motion to dismiss based on the statute of limitations is treated as a motion for summary judgment.

Section 802.06(3) treats a motion to dismiss as a motion for summary judgment when the parties submit material outside the pleadings and the court considers it.

Kauer v. Wisconsin Department of Transportation · filed 2010-09-08(3)

However, since parties on both sides submitted briefs with attached affidavits, and since the trial court reviewed that information and referenced it in its decision, and even referred to the proceeding as a summary judgment proceeding, we are treating the order as a grant of summary judgment.

Section 802.06(2)(b) permits a court to treat a motion to dismiss as one for summary judgment when it considers matters outside the pleadings, but those materials cannot cure a complaint that fails to state a claim.

Broome v. State Department of Corrections · filed 2010-11-24(2)(b)

Whether the motion is initially one for dismissal under Wis. Stat. § 802.06(2) and is then converted to one for summary judgment under § 802.06(2) (b), or whether it is filed in the first instance as a motion for summary judgment under § 802.08, the court does not consider matters outside the pleading until it has determined that the complaint states a claim for relief.

Section 802.06(3) treats a motion to dismiss as one for summary judgment when the court receives matters outside the pleadings.

Berger v. Town of New Denmark · filed 2012-01-10(3)

Because matters outside the pleadings were received by the circuit court, we construe the motion as one for summary judgment pursuant to Wis. Stat. § 802.06(3).

Section 802.06(2)(b) requires a motion to dismiss to be treated as one for summary judgment when the court considers materials outside the pleadings.

Bowen v. American Family Insurance · filed 2012-02-14(2)(b)

If matters outside the pleadings are presented to and not excluded by the court, a motion to dismiss is treated as one for summary judgment and disposed of as provided in Wis. Stat. § 802.08. See Wis. Stat. § 802.06(2)(b). Because Bowen's submissions were not excluded, we review the motion as one for summary judgment.

Section 802.06(3) treats a motion to dismiss as a summary judgment motion when the parties submit material outside the pleadings and the court considers it.

Williamson v. Hi-Liter Graphics, LLC · filed 2012-02-29(3)

Although Hi-Liter moved to dismiss, because parties on both sides submitted briefs with attached affidavits, and because the trial court reviewed that information and referenced it in its decision, we review the order as a grant of summary judgment.

Section 802.06(2)(b) allows a motion to dismiss to be treated as a summary judgment motion when the parties submit materials outside the pleadings for the court's consideration.

American Family Mutual Insurance v. Outagamie County · filed 2012-04-17(2)(b)

The County's motion was captioned as a motion to dismiss. However, the parties submitted materials outside the pleadings for the court's consideration. Accordingly, we treat the County's motion as one for summary judgment.

Section 802.06(2)(b) permits a court to treat a motion to dismiss as a motion for summary judgment when the parties submit matters outside the pleadings and the court does not exclude them.

Estate of Hopgood v. Boyd · filed 2013-01-03(2)(b)

The parties submitted matters outside the pleadings in litigating the motion to dismiss and the circuit court did not exclude the additional evidence that was submitted. Therefore, the circuit court properly converted the motion to dismiss to a motion for summary judgment. Wis. Stat. § 802.06(2)(b).

Section 802.06(2)(b) permits a motion to dismiss to be treated as a motion for summary judgment when the court relies on facts outside the pleadings.

Burgraff v. Menard, Inc. · filed 2014-07-29(2)(b)

Millers First's motion was captioned as a motion to dismiss. However, it referred to facts outside the pleadings— specifically, the settlement agreement — and the circuit court relied on those facts in reaching its decision. We therefore treat the motion as a motion for summary judgment.

Section 802.06(2)(b) requires a motion to dismiss to be treated as a motion for summary judgment when the court considers matters outside the pleadings.

Estate of Anne Oros v. Divine Savior Healthcare Inc. · filed 2022-05-06(2)(b)

The defendants' Motion for the Application of Chapter 655 is best construed as a motion for summary judgment. The motion relied on facts not included in Andruss's complaints.

Section 802.06(2)(b) permits a court to consider materials outside the petition on a motion to dismiss when the opposing party has an opportunity to present responsive materials, regardless of how the court labels its ruling.

Lamar Central Outdoor v. Wisconsin Department of Transportation · filed 2008-11-20(2)(b)

We are also satisfied that Lamar had the opportunity to present factual materials in opposition. Therefore, we conclude the court properly considered DOT's submissions relating to the exhaustion and exclusivity issues. ... It is immaterial to our review that the circuit court viewed its ruling as one on a motion to dismiss rather than one for summary judgment.

Section 802.06(2)(b) treats a motion as one for summary judgment when matters outside the pleadings are presented, but materials concerning mootness already considered on appeal need not trigger that treatment in unusual circumstances.

Notz v. Everett Smith Group, Ltd. · filed 2009-04-29(2)(b)

We note that under the unusual circumstances presented here this material does not constitute "matters outside of the pleadings" under Wis. Stat. § 802.06(2)(b) (stating that where such matters are presented to the court, the motion is treated as one for summary judgment). The court of appeals appeared to treat this material as part of the pleadings. Under these circumstances, we see no reason to treat this as an action for summary judgment.

When a court considers matters outside the pleadings on a motion to dismiss based on claim preclusion, summary judgment procedure applies.

Wisconsin Public Service Corp. v. Arby Construction, Inc. · filed 2011-04-21(2)(b)

Summary judgment procedure applies when a circuit court considers matters outside the pleadings on a motion to dismiss based on claim preclusion.

A dismissal motion based on claim preclusion is reviewed in the same manner as a grant of summary judgment.

Wisconsin Public Service Corp. v. Arby Construction, Inc. · filed 2012-07-11(2)(a)8. and (b)

We review the grant of a motion to dismiss based upon claim preclusion in the same manner we review a grant of summary judgment. Wis. Stat. § 802.06(2)(a)8. and (b) and Wis. Stat. § 802.08.

Section 802.06 permits a court to consider a document referenced in the complaint, central to the claim, and undisputed as authentic without converting a motion to dismiss or for judgment on the pleadings into one for summary judgment.

Soderlund v. Zibolski · filed 2015-12-08(2)(b), (3)

We adopt the incorporation-by-reference doctrine and reject Soderlund's argument. ... Under that exception, a court may consider a document attached to a motion to dismiss or for judgment on the pleadings without converting the motion into one for summary judgment, if the document was referred to in the plaintiffs complaint, is central to his or her claim, and its authenticity has not been disputed.

Section 802.06(8)(a) preserves a personal-jurisdiction defense raised by motion or in a responsive pleading; signing a stipulation used in another state’s divorce case did not waive that defense.

Schroff v. Schroff · filed 1978-10-31(8)(a)

But our statute, 802.06(8), makes it clear that the defense of lack of personal jurisdiction “is waived only, 1) if it is omitted from a motion in the circumstances described in sub. (7) or 2) if it is neither made by motion under this section nor included in a responsive pleading.” (Emphasis added.) ... The facts in this case do not show a waiver by Karen Schroff.

Section 802.06(8) treats a defense of lack of personal jurisdiction as waived unless it is raised by motion or included in a responsive pleading.

State v. Hanson · filed 1980-06-24(8)

The defense of lack of jurisdiction over the person is considered waived if it is neither made by motion nor included in the responsive pleading. See sec. 802.06(8), Stats. No motion alleging a lack of jurisdiction over the offender having been properly raised, the issue is waived.

Section 802.06(8) limits waiver of a personal jurisdiction defense to omitting it from a motion or failing to raise it by motion or in a responsive pleading.

Sacotte v. Ideal-Werk Krug & Priester MacHinen-fabrik · filed 1984-04-10(8)

Section 802.06(8), Stats., provides that a defense of lack of personal jurisdiction is waived only if it is omitted from a motion or if it is neither made by motion nor included in a responsive pleading. The statute makes it clear that these are the only ways the defense is waived.

Section 802.06(8)(a) permits waiver of a personal jurisdiction objection when a party appears, seeks affirmative relief, and fails to reserve the objection.

Artis-Wergin v. Artis-Wergin · filed 1989-06-20(8)(a)

An objection to personal jurisdiction will be waived "only 1) if it is omitted from a motion [consolidating defenses], or 2) if it is neither made by motion under this section nor included in a responsive pleading." Sec. 802.06(8)(a), Stats. ... We conclude that a party cannot enter an appearance, request affirmative relief from the court, and then later argue that the court was without personal jurisdiction. Therefore, Major Albanese's letter as Walter's agent to the trial court requesting a stay of proceedings under the SSCRA and failing to reserve a jurisdictional objection served as an appearance and gave the court personal jurisdiction.

Section 802.06(8) waives an objection to lack of jurisdiction if the objection is not raised seasonably.

Estate of Boyle v. Wickhem, Buell, Meier, Wickem & Southworth, S.C. · filed 1986-10-15(8)

The lack of such jurisdiction, however, is waived if an objection is not seasonably interposed. See sec. 802.06(8), Stats. ... We conclude that the estate properly raised its objection to Wickhem’s failure to serve the required documents.

Section 802.06(8)(a) waives a personal jurisdiction objection if the defendant files a responsive pleading without first raising the objection.

In Re Paternity of KJE · filed 1992-03-18(8)(a)

As such, the form is a legislatively prescribed "responsive pleading." R.E.J.'s answers on the form were responsive to the complaint. Under sec. 802.06(8)(a), Stats., failure to object to personal jurisdiction prior to a responsive pleading constitutes waiver.

Section 802.06(8)(a) waives an objection to personal jurisdiction if the defendant does not raise it before filing a responsive pleading.

Paternity of K.J.E. v. R.E.J. · filed 1992-03-18(8)(a)

Under sec. 802.06(8)(a), Stats., failure to object to personal jurisdiction prior to a responsive pleading constitutes waiver.

Section 802.06(8)(a) allows waiver of both fundamental and technical personal jurisdiction defects when they are not properly raised by motion or responsive pleading.

Studelska v. Avercamp · filed 1993-07-28(8)(a)

Thus, waiver of personal jurisdiction defects happens when the defects are not raised by either a proper pleading or a motion. The statutes detail how the personal jurisdictional issue is to be joined, and if not properly joined, it is waived. We determine that this statute applies to both fundamental and technical jurisdictional defects.

Section 802.06(8)(a) preserves a personal jurisdiction objection raised in a responsive pleading; later participation in the action does not waive it.

Dietrich v. Elliott · filed 1995-01-04(8)(a)

However, § 802.06(8)(a) provides that a defense based on a lack of jurisdiction or insufficiency of service of process is waived "only 1) if it is omitted from a motion [consolidating defenses], or 2) if it is neither made by motion under this section nor included in a responsive pleading."

Section 802.06(8) preserves a personal jurisdiction defense when either of two insurers raises it in a timely responsive pleading on the defendant's behalf.

Honeycrest Farms, Inc. v. Brave Harvestore Systems, Inc. · filed 1996-02-20(8)

Based upon the foregoing, we conclude that a party does not waive the defense of lack of personal jurisdiction under § 802.06, STATS., when either answer filed by two different insurers on its behalf raises the defense.

Section 802.06(8)(a)1 allows a defendant to preserve an objection to personal jurisdiction by raising it in an answer, including in a certiorari action commenced by complaint.

Bergstrom v. Polk County · filed 2011-01-11(8)(a)1

However, as Mathy points out, Wis. Stat. § 802.06(8)(a)l. allows a defendant to raise lack of personal jurisdiction in its answer without waiving that defense.

Section 802.06 does not require a defendant to raise a limitations defense before the answer or motion to dismiss is due, so failing to oppose an earlier motion to enlarge time does not waive the defense.

Pulchinski v. Strnad · filed 1979-03-27(1), (2), (8)

The defendants were not obliged to raise the defense before the answer or motion to dismiss under sec. 802.06 (2), Stats., became due. Sec. 802.06(1), Stats., provides that the answer must be filed within twenty days of the service'of the complaint. Sec. 802.06(2) provides that a motion under that section shall be made before pleading if further pleading is permitted. Thus the motion must be made within twenty days of service of the complaint.

Section 802.06’s waiver provisions apply only when an action is pending.

Hester v. Williams · filed 1984-03-27(8)

The waiver provisions of sec. 802.06, Stats., only apply when an action is pending.

A party waives the affirmative defense of discretionary immunity if it does not raise the defense in a responsive pleading or by motion.

Anderson v. City of Milwaukee · filed 1997-02-28(2)

Therefore, unlike the statutory damage limitation, discretionary immunity is an affirmative defense that is deemed waived if it is not raised in a responsive pleading or by motion.

Section 802.06 requires a defendant to raise a misjoinder defense in a timely answer or other responsive pleading.

Holman v. Family Health Plan · filed 1997-12-30(1), (2)(a)

We conclude that FHP was required to file a timely answer or other responsive pleading raising its mis-joinder defense pursuant to § 802.06(1) and (2)(a), Stats.

Section 802.06(8)(b) permits a defendant that pleaded failure to state a claim or a statute of limitations defense in its answer to seek disposition of that defense by a later motion.

Eternalist Foundation, Inc. v. City of Platteville · filed 1999-03-18(8)(b)

Other subsections of the statute, moreover, make clear that a defendant who includes the defenses of failure to state a claim or statute of limitations in an answer does not forfeit the right to bring those defenses on for disposition by motion thereafter.

Section 802.06 permits a certiorari respondent to raise claim preclusion after an unsuccessful motion to dismiss on other grounds, provided the respondent raises it before the court considers the merits.

State Ex Rel. Barksdale v. Litscher · filed 2004-06-17(8)(b)

Just as the rule plainly provides an exception for claim preclusion from the waiver rule of § 802.06(7), it also requires that the issue be brought to the court's attention before the court addresses the merits of the dispute.

Section 802.06 does not specify whether a challenge to circuit court competency is waived if it is not pleaded.

Village of Trempealeau v. Mikrut · filed 2004-06-16

In any event, while the statute establishes pleading and motion requirements and waiver rules for defenses based upon personal and subject matter jurisdiction (and certain other defenses based upon defects in statutory procedure), it is silent as to whether defenses based upon lack of competency are waived if not pleaded.

Section 802.06(2)(a) requires defendants to raise defenses in a responsive pleading or permitted motion; a general assertion that a claim is not viable does not preserve the economic loss doctrine as a defense.

Reuben v. KOPPEN · filed 2010-03-10(2)(a)

In Wisconsin, every defense, except the defense of improper venue, is required to be asserted in the responsive pleading, except that certain defenses may, at the option of the pleader, be made by motion. Wis. Stat. § 802.06(2)(a). ... Although Higgins did assert that Reuben had not pled a viable claim for misrepresentation, her responsive pleading did not specifically set forth the economic loss doctrine as grounds for that assertion.

Section 802.06(7) does not waive a defense omitted from an earlier motion when the party later raises it in response to an injunction motion.

Bostco LLC v. Milwaukee Metropolitan Sewerage District · filed 2011-05-24(7)

Consequently, § 802.06(7) does not apply, and the District has not waived the defense.

Section 802.06(2)(a) exhaustively lists the defenses that may be raised by motion; noncompliance with the notice of claim statute is not among them and must be raised in a responsive pleading.

Maple Grove Country Club Inc. v. Maple Grove Estates Sanitary District · filed 2019-04-23(2)(a)

Unlike the list of affirmative defenses in Wis. Stat. § 802.02(3), the list of ten defenses in § 802.06(2)(a) is exhaustive.

Section 802.06(2) allows its ten enumerated defenses to be raised by motion, but fraud is not among them.

Am. Family Mut. Ins. Co. v. Bell-Johnson · filed 2019-06-06(2)

Fraud is not one of the ten enumerated defenses in Wis. Stat. § 802.06(2) that may be raised by motion and, therefore, the § 802.06(2) exception does not assist Empire.

Section 802.06(4) requires an evidentiary hearing when a personal-jurisdiction objection raises factual issues; the plaintiff need not submit a counteraffidavit to obtain the hearing.

Bielefeldt v. St. Louis Fire Door Co. · filed 1979-06-12(4)

The statutes do not, either expressly or by implication, condition a plaintiff’s right to demand a hearing on the requirement that the plaintiff have submitted a counteraffidavit asserting jurisdictional facts in opposition to the affidavit submitted by the defendant.

Section 802.06(4) generally entitles a plaintiff to an evidentiary hearing when a defendant challenges personal jurisdiction, even without a prior showing that the hearing is necessary.

Kavanaugh Restaurant Supply, Inc. v. M.C.M. Stainless Fabricating, Inc. · filed 2006-10-26(4)

Although it may seem counter-intuitive, a plaintiff is normally entitled to an evidentiary hearing when a defendant challenges personal jurisdiction even if the plaintiff does not demonstrate that an evidentiary hearing is necessary. Wisconsin Stat. § 802.06(4) provides that "[t]he hearing on the defense of lack of jurisdiction over the person... shall be conducted in accordance with s. 801.08."

Under the 1995 version of § 802.06(1), the state and state agencies had 45 days to answer a complaint regardless of whether the action fell under §§ 893.82 or 895.46.

Jackson v. Employe Trust Funds Board · filed 1999-09-30(1)

In our view, the only reasonable construction of the statute is that it grants the state or a state agency forty-five days to respond to such a complaint.

Section 802.06(1) requires a defendant to serve an answer within 45 days after service of the complaint.

Williams Corner Investors, LLC v. Areawide Cellular, LLC · filed 2004-01-14(1)

A defendant shall serve an answer within forty-five days after the service of the complaint upon the defendant. Wis. Stat. § 802.06(1).

Section 802.06(1) gives a defendant 45 days to serve an answer when any cause of action in the original pleading is founded in tort.

Keene v. Sippel · filed 2007-11-14(1)

The Keenes brought three causes of action, one of which is founded in tort and, therefore, Sippel was subject to the forty-five-day time limitation for responsive service.

Section 802.06(1) requires a defendant to serve an answer within forty-five days after being served with the complaint.

Estate of Otto Ex Rel. Otto v. Physicians Insurance Co. of Wisconsin · filed 2007-07-24(1)

Wisconsin Stat. § 802.06(1) requires a defendant to serve an answer within forty-five days of being served with the complaint.

Section 802.06(1) requires a defendant, including a surety, to serve a timely answer to contest liability.

Backus Electric, Inc. v. Petro Chemical Systems, Inc. · filed 2013-02-13(1)

Here, Old Republic did not file a timely answer or move for an extension of time to make its untimely answer timely. It cannot contest liability when it has no valid answer putting liability in issue.

Section 802.06(8)(b) allows a statute of limitations defense to be preserved by motion; failing to use an available motion before the merits hearing waives that defense.

County of Milwaukee v. State, Labor & Industry Review Commission · filed 1983-05-17(8)(b)

We note that this section specifies when this defense may be preserved by a motion. However, because none of the available motions were utilized by the County prior to the hearing on the merits by the circuit court, the County has also waived its defense under this section.

Section 802.06(2)(j) does not permit dismissal for another action pending when the earlier action has been terminated.

United Pacific Insurance v. Metropolitan Sewerage Commission · filed 1983-07-11(2)(j)

We determine that Judge O’CONNELL’S order dismissing Case No. 435-067 without prejudice to commencement of this action (484-112) was a complete termination of No. 435-067 and that Judge JENNARO, in the first instance, properly denied the dismissal for another action pending.

A motion based on another pending action fails when the plaintiff was not a party to the earlier action.

Jensen Ex Rel. Stierman v. McPherson · filed 2002-11-13(2)(a)10

Upon our review of the 1997 Summons and Complaint, Erik was never a party-plaintiff in the action; thus, the 2001 action — where Erik was properly pled as a party — is not duplicative.

Section 802.06(2)(a)10. permits dismissal of a second action arising from the same claim even when it names a different defendant who could have been joined in the first action.

Barricade Flasher Service, Inc. v. Wind Lake Auto Parts, Inc. · filed 2011-11-16(2)(a)10.

Bringing a new action against a different party is not enough to get around Wis. Stat. § 802.06(2)(a)10.

Section 802.06(2)(a)10. permits dismissal of a later lawsuit based on the same facts and circumstances as a pending lawsuit, even when the later suit names a different party.

RBC Europe, Ltd. v. Noack · filed 2014-02-18(2)(a)10.

Allowing the simultaneous lawsuits to continue will essentially allow for the litigation of two identical lawsuits in two separate courts. We held in Barricade that where the facts and circumstances of a pending lawsuit and a new lawsuit are the same, simply naming "a different party [in the new lawsuit] is not enough to get around [Wis. Stat.] § 802.06(2)(a) 10." Barricade, 338 Wis. 2d 144, ¶ 8.

Section 802.06(2)(a)10. permits dismissal when another action between the same parties for the same cause is pending.

Payday Loan Store of Wisconsin Inc. v. Krueger · filed 2013-01-23(2)(a)10.

To prevail on a motion to dismiss under Wis. Stat. § 802.06(2)(a)10., the moving party must prove the existence of: (1) another pending action; (2) between the same parties; (3) for the same cause.