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802.03

802.03 Pleading special matters.

802.03(1)

(1) Capacity. It is not necessary to aver the capacity of a party to sue or be sued or the authority of a party to sue or be sued in a representative capacity or the legal existence of an organized association of persons that is made a party. If a party desires to raise an issue as to the legal existence of any party or the capacity of any party to sue or be sued or the authority of a party to sue or be sued in a representative capacity, the party shall do so by specific negative averment which shall include such supporting particulars as are peculiarly within the pleader's knowledge, or by motion under s. 802.06 (2).

802.03(2)

(2) Fraud, mistake and condition of mind. In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity. Malice, intent, knowledge, and other condition of mind of a person may be averred generally.

802.03(3)

(3) Conditions precedent. In pleading the performance or occurrence of conditions precedent in a contract, it shall not be necessary to state the facts showing such performance or occurrence, but it may be stated generally that the party duly performed all the conditions on his or her part or that the conditions have otherwise occurred or both. A denial of performance or occurrence shall be made specifically and with particularity. If the averment of performance or occurrence is controverted, the party pleading performance or occurrence shall be bound to establish on the trial the facts showing such performance or occurrence.

802.03(4)

(4) Official document or act. In pleading an official document or official act it is sufficient to aver that the document was issued or the act done in compliance with the law.

802.03(5)

(5) Judgment. In pleading a judgment or decision of a domestic or foreign court, judicial or quasi-judicial tribunal, or of a board or officer, it is sufficient to aver the judgment or decision without setting forth matter showing jurisdiction to render it.

802.03(6)

(6) Libel or slander. In an action for libel or slander, the particular words complained of shall be set forth in the complaint, but their publication and their application to the plaintiff may be stated generally.

802.03(7)

(7) Sales of goods, etc. In an action involving the sale and delivery of goods or the performing of labor or services, or the furnishing of materials, the plaintiff may set forth and number in the complaint the items of the plaintiff's claim and the reasonable value or agreed price of each. The defendant by the answer shall indicate specifically those items defendant disputes and whether in respect to delivery or performance, reasonable value or agreed price. If the plaintiff does not so plead the items of the claim, the plaintiff shall deliver to the defendant, within 10 days after service of a demand therefor in writing, a statement of the items of the plaintiff's claim and the reasonable value or agreed price of each.

802.03(8)

(8) Time and place. For the purpose of testing the sufficiency of a pleading, averments of time and place are material and shall be considered like all other averments of material matter.

802.03(9)

(9) Foreclosure. In an action for foreclosure of real property, the complaint may not name a tenant of residential real property as a defendant unless the tenant has a lien or ownership interest in the real property.

802.03 - ANNOT.

History: Sup. Ct. Order, 67 Wis. 2d 585, 619 (1975); 1975 c. 218; 2009 a. 28.

802.03 - ANNOT.

Sub. (8) subjects claims lacking averments of time to motions for a more definite statement and not to motions to dismiss for failure to state a claim. Schweiger v. Loewi & Co., Inc. 65 Wis. 2d 56, 221 N.W.2d 882 (1974).

802.03 - ANNOT.

The "American rule" of absolute judicial immunity from liability for libel or slander provides that writings made by an attorney of record in a pending lawsuit apply in this state if the statements made are relevant to the matters being considered and are made in a procedural context recognized as affording absolute privilege. Converters Equip. Corp. v. Condes Corp. 80 Wis. 2d 257, 258 N.W.2d 712 (1977).

802.03 - ANNOT.

When a libel action is based on conduct rather than words, sub. (6) is not applicable. Starobin v. Northridge Lakes Development Co. 94 Wis. 2d 1, 287 N.W.2d 747 (1980).

802.03 - ANNOT.

Sub. (2) does not prevent the trial court from amending the pleadings to conform with the evidence pursuant to s. 802.09 as long as the parties either consent or have the chance to submit additional proof. Maiers v. Wang, 192 Wis. 2d 115, 531 N.W.2d 54 (1995).

802.03 - ANNOT.

Sub. (2) requires specification of the time, place, and content of an alleged false representation. Allegations were too general that did not specify the particular individuals who made the representations and did not specify where, when, and to whom the representations were made. Friends of Kenwood v. Green, 2000 WI App 217, 239 Wis. 2d 78, 619 N.W.2d 271, 00-0680.