Steven C. Tietsworth v. Harley-Davidson, Inc.

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2007 WI 97 SUPREME COURT CASE NO.: OF WISCONSIN 2004AP2655 COMPLETE TITLE: Steven C. Tietsworth, David Bratz, John W. Myers, Gary Streitenberger, Gary Wegner and on behalf of themselves and all others similarly situated, Plaintiffs-Appellants, v. Harley-Davidson, Inc. and Harley-Davidson Motor Company, Defendants-Respondents-Petitioners. REVIEW OF A DECISION OF THE COURT OF APPEALS 2006 WI App 5 Reported at: 288 Wis. 2d 680, 709 N.W.2d 901 (Ct. App. 2005 Published) OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: SOURCE OF APPEAL: COURT: COUNTY: JUDGE: JUSTICES: CONCURRED: DISSENTED: July 12, 2007 September 7, 2006 Circuit Milwaukee Michael Guolee ABRAHAMSON, C.J., dissents (opinion filed). BRADLEY and CROOKS, JJ., join the dissent. NOT PARTICIPATING: ATTORNEYS: For the defendants-respondents-petitioners there were briefs by W. Stuart Parsons, Patrick W. Schmidt, Jeffrey O. Davis, Kelly H. Twigger, David A. Strifling, and Quarles & Brady LLP, Milwaukee; Robert L. Binder and Foley & Lardner, Milwaukee, and oral argument by W. Stuart Parsons. For the plaintiffs-appellants there was a brief by Ted W. Warshafsky, Frank T. Crivello, II, and Warshafsky, Rotter, Tarnoff, Reinhardt & Bloch, S.C., Milwaukee; Jonathan D. Selbin, Lisa J. Leebove, and Lieff, Cabraser, Heimann & Bernstein, LLP, San Francisco, CA; David J. Bershad, Michael M. Buchman, Michael R. Reese, and Milberg Weiss Bershad & Schulman LLP, New York, NY; Shpetim Ademi, Guri Ademi, Robert K. O Reilly, and Ademi & O Reilly, Selbin. LLP, Cudahy, WI, and 2 oral argument by Jonathan D. 2007 WI 97 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2004AP2655 (L.C. No. 2001CV5928) STATE OF WISCONSIN : IN SUPREME COURT Steven C. Tietsworth, David Bratz, John W. Myers, Gary Streitenberger, Gary Wegner and on behalf of themselves and all others similarly situated, FILED Plaintiffs-Appellants, JUL 12, 2007 v. Harley-Davidson, Inc. and Harley-Davidson Motor Company, David R. Schanker Clerk of Supreme Court Defendants-Respondents-Petitioners. REVIEW of a decision of the Court of Appeals. ¶1 DAVID T. PROSSER, J. The issue Reversed. presented in this review is whether plaintiffs may reopen their case and amend their complaint after the circuit court has dismissed the complaint in its entirety on the merits and the dismissal has been affirmed on appeal. The court of appeals reversed the circuit court's determination that it could not reopen the case to amend the complaint on these facts without a clear directive from the court deciding the appeal. Tietsworth v. Harley- No. 2004AP2655 Davidson, Inc. (Tietsworth III), 2006 WI App 5, 288 Wis. 2d 680, 709 N.W.2d 901. statutory and After case law, carefully and reviewing the policy the facts, embodied procedural code, we agree with the circuit court. in the the Consequently, we reverse the court of appeals. ¶2 We hold that 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 circuit court has no authority to reopen the case for an amended complaint after an appellate court has affirmed the dismissal of the complaint in its entirety on the merits. FACTS AND PROCEDURAL HISTORY ¶3 This case has a lengthy history, including a previous decision by this court. Tietsworth v. Harley-Davidson, Inc. (Tietsworth II), 2004 WI 32, 270 Wis. 2d 146, 677 N.W.2d 233. In Tietsworth II, this court addressed the merits of plaintiffs' tort-based complaint against the defendants. Now we are called upon to address the procedural ramifications of Tietsworth II. This requires us to set out the procedural history of the case. ¶4 On June 28, 2001, Steven C. Tietsworth, a resident of California, filed a complaint in the Milwaukee County Circuit Court on behalf of himself and a class consisting of all persons and entities in the United States who have owned, own, leased, lease, or acquired 1999 and early 2000 model Harley-Davidson motorcycles equipped with Twin Cam 88 or Twin Cam 88B engines. Tietsworth v. Harley-Davidson, 2 Inc. (Tietsworth 2001), No. No. 2001CV5928 (Mil. Cty. Cir. Ct. June 28, 2001).1 alleged Davidson that defendants, Motor Company Harley-Davidson, (Harley), had 2004AP2655 The complaint Inc. designed, and Harley- manufactured, marketed, and sold motorcycles with defective engines because of cam bearings that were faulty, inferior, and prone to sudden failure. action: The (1) complaint asserted negligence; (2) four strict tort-based products causes liability; of (3) fraudulent concealment; and (4) fraudulent misrepresentation and deceptive trade practices in violation of Wis. Stat. § 100.18(1) and (11)(b). ¶5 On September 27, 2001, Tietsworth amended his complaint, adding four Wisconsin residents as named plaintiffs (collectively, Tietsworth). ¶6 The factual basis for the complaint is discussed in Tietsworth II, 270 Wis. 2d 146, ¶¶5-6. In essence, Harley- Davidson, the only major American-based motorcycle manufacturer, redesigned its motorcycle engines in the late 1990s, developing the Twin Cam 88 and Twin Cam 88B engines for the 1999 and early 2000 models. sent a A problem cropped up. letter to Tietsworth and On January 22, 2001, Harley approximately 140,000 other owners of the subject motorcycles, explaining that "the rear cam bearing in a small number of Harley-Davidson Twin Cam 88 engines 1 Tietsworth 2001 is a nonlegal denomination that distinguishes this case from a second Tietsworth case filed in 2004 (Tietsworth 2004). The appellate decisions heretofore published in this case are denominated Tietsworth I, Tietsworth II, and Tietsworth III. Hence, this decision will become Tietsworth IV. 3 No. has failed." would While the letter assured Harley owners that they probably reported never that year/unlimited have Harley mileage to worry was their engines about extending warranty to a warranty on the rear cam bearing. repair 2004AP2655 this the problem, standard it one- five-year/50,000 mile For owners who wanted to immediately, Harley made available cam bearing repair kits for $495.00. ¶7 Tietsworth's complaint alleged that Harley motorcycles with the Twin Cam 88 or 88B engines are inherently defective and have an unreasonably dangerous propensity to suffer premature cam bearing failure, Tietsworth did especially in resulting not identify motorcycles in any owned engine failure. specific by the engine named Although failures, plaintiffs, he asserted that the "inherent cam bearing defect" posed safety risks and diminished the value of all Harley motorcycles with Twin Cam 88 engines. ¶8 the This led to his four tort-based claims. On November 1, 2001, Harley filed motions to dismiss complaint Tietsworth and filed to a stay discovery. cross-motion to On December compel 3, 2001, discovery. The circuit court, William J. Haese, Judge, granted Harley s motion to stay discovery; and on February 27, 2002, it dismissed the entire complaint for failure to state a claim.2 The court dismissed the negligence and strict products liability claims because the plaintiffs failed to allege any actual damages and 2 The circuit court dismissed the complaint approximately eight months after the complaint was filed. 4 No. 2004AP2655 because the economic loss doctrine barred the claims. The court dismissed the two fraud claims because the plaintiffs did not allege any actual damages. ¶9 On April 12, 2002, Tietsworth filed a notice to appeal the dismissal of his common law fraud and statutory fraudulent misrepresentation/deceptive trade practices claims. ¶10 On that same day April 12 Tietsworth s counsel filed a separate Wilton class action Jones and lawsuit Richard against Kempen Harley (collectively, on behalf Jones). of The Jones suit made contract claims, namely, breach of warranty and unjust enrichment, based on the same facts involving the Twin Cam 88 and 88B Harley engines. Jones v. Harley-Davidson, Inc., No. 2002CV3629 (Mil. Cty. Cir. Ct. Apr. 12, 2002). ¶11 On September 23, 2002, the Milwaukee County Circuit Court, Jeffrey A. Kremers, Judge, dismissed the entire Jones complaint for failure to state a claim because Jones did not allege a cognizable injury. The court stated that to recover under a breach of warranty, Jones was required to allege an actual failure of the engine and Harley s refusal or inability to fix the failure. sufficient. A mere allegation of a defect was not Likewise, to recover under unjust enrichment, Jones must have alleged actual engine failure. ¶12 On Tietsworth s March 4, appeal. 2003, the Tietsworth Jones did not appeal. court v. of appeals decided Harley-Davidson, Inc. (Tietsworth I), 2003 WI App 75, 261 Wis. 2d 755, 661 N.W.2d 450. The court of appeals reinstated both the common law fraud and statutory fraudulent misrepresentation/deceptive trade practices 5 No. 2004AP2655 claims on the theory that plaintiffs had suffered actual damages under the "benefit of the bargain" rule and under the standard enunciated in Wis. 2d 302, Pritzlaff 315, 533 v. Archdiocese N.W.2d 780 of (1995). Milwaukee, Tietsworth I, 194 261 Wis. 2d 755, ¶¶11-16. ¶13 two Harley sought review of the decision to reinstate the fraud claims; and on March Tietsworth II, 270 Wis. 2d 146. 26, 2004, we reversed. With regard to the fraudulent misrepresentation/deceptive trade practices claim, we held that the plaintiff did not allege facts to meet the elements of the statutory claim. See id., ¶40. Specifically, we held that non- disclosure did not constitute an assertion, representation, or statement of fact under Wis. Stat. § 100.18(1). addition, we stated that to the extent Id., ¶40. any In affirmative assertions were made, they were mere commercial puffery. Id., ¶41. ¶14 We dispatched the common law fraud claim by holding that it was barred by the economic loss doctrine. Our discussion of the economic loss doctrine Id., ¶37. included following passages in paragraphs 36 and 37: As such, the plaintiffs have warranty remedies for the alleged defects in their motorcycles. In addition, there are contract remedies at law and in equity to the extent that the plaintiffs were fraudulently induced to purchase their motorcycles. A contract fraudulently induced is void or voidable; a party fraudulently induced to enter a contract may affirm the contract and seek damages for breach or pursue the equitable remedy of rescission and seek restitutionary damages . . . . The economic loss 6 the No. doctrine does not bar these contract fraudulently induced contracts. . . . 2004AP2655 remedies for In short, we see no reason to recognize an exception to the economic loss doctrine to allow this consumer contract dispute to be remedied as an intentional misrepresentation tort. The economic loss doctrine bars the plaintiffs' common-law fraud claim. 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 II, 270 Wis. 2d 146, ¶¶36-37. ¶15 After discussing both fraud claims, we reversed the court of appeals. Court Our mandate stated: "The decision of the of Appeals is reversed." Id. at 172. There was no mention of "remand" in the mandate or in the decision. ¶16 filed a breach Following completely of the release new warranty; inducement to contract. lawsuit (2) of Tietsworth against restitution; II, Harley and Tietsworth alleging (3) (1) fraudulent Tietsworth v. Harley Davidson, Inc. (Tietsworth 2004), No. 2004CV3305 (Mil. Cty. Cir. Ct. Apr. 12, 2004). This new case was assigned to Circuit Judge Francis Wasielewski. Tietsworth soon decided, however, that he had made a procedural error by filing a new complaint, that instead he wanted to reopen Tietsworth 2001. He asked Harley to stipulate to the voluntary dismissal of Tietsworth 2004. Harley refused. Harley filed a motion to dismiss Tietsworth 2004 on May 26, 2004, under the theory of claim preclusion. ¶17 On June 17, 2004, while Tietsworth 2004 was pending, Tietsworth asked Circuit Judge Michael Guolee, who had inherited 7 No. the original case from Judge Haese, Tietsworth 2001 to amend the complaint. three new claims: (1) breach of for leave Before Judge Guolee ruled warranty; on to reopen Tietsworth asserted (2) inducement to contract; and (3) unjust enrichment. ¶18 2004AP2655 fraudulent Id. Tietsworth s motion, Judge Wasielewski granted Harley s motion to dismiss Tietsworth 2004.3 Judge Wasielewski reasoned that the new claims were barred by claim preclusion based on this court's decision in Tietsworth II.4 He also considered whether the new claims were barred under claim preclusion by the circuit court s decision in Jones. Although he noted that the parties in the two cases were not identical, Judge Wasielewski pondered whether the parties shared a unity of interest sufficient barred the claims in Tietsworth 2004. conclusion on that question. that claim preclusion The court reached no The parties agreed, however, that the dismissal of Tietsworth 2004 would not in itself preclude Judge Guolee from reopening the original Tietsworth 2001 case on grounds of claim preclusion. ¶19 On August 23, 2004, Judge Guolee ruled that Tietsworth could not amend his original complaint to introduce contract and warranty claims. The court held that it did not have authority under Wis. Stat. § 808.08(3) to reopen the case. It found that the decision of this court was final and that "[a] trial court 3 The case was dismissed on July 26, 2004. 4 It also dismissed Tietsworth's warranty for failure to state a claim. 8 claim for breach of No. 2004AP2655 may not allow amendments of pleadings when the Supreme Court affirmed the judgment [of dismissal]." The court found that the language in paragraphs 36 and 37 of the supreme court opinion, when read in context, did not grant or allow the court to reopen the case. ¶20 Again Tietsworth appealed. On December 13, 2005, the court of appeals reversed, concluding that the circuit court "erred in denying the plaintiffs' motion to reopen and amend the complaint." appeals Tietsworth III, 288 Wis. 2d 680, ¶9. said that Wis. Stat. § 808.08(3) court to reopen the case. Id., ¶¶13-18. court of reversed the court appeals The court of allowed the circuit It reasoned that this but did not "affirm a judgment of dismissal or direct that a judgment of dismissal be entered." Id., ¶14. The court cited State ex. rel. J.H. Findorff & Son, Inc. v. Circuit Court for Milwaukee County, 2000 WI 30, ¶25, 233 Wis. 2d 428, 608 N.W.2d 679, for the proposition that the trial court often has some discretion "on remand" to resolve matters left open, provided that its action inconsistent with the order of the higher court. is not The court of appeals said that the "mandate [of this court] left open the opportunity for the plaintiffs to pursue contract and warranty claims[;]" therefore, amending the complaint inconsistent with the supreme court s order. 288 Wis. 2d 680, ¶15. would not be Tietsworth III, The court distinguished the present case from Sutter v. State, 69 Wis. 2d 709, 233 N.W.2d 391 (1975), where the controversy went to trial and was fully tried upon the merits. Tietsworth III, 288 Wis. 2d 680, ¶19. 9 The court of No. 2004AP2655 appeals further concluded that justice requires an amendment of the pleadings because the law was unclear as to the viability of Tietsworth s claims when Tietsworth first filed the complaint. Id., ¶22. The court also said that justice requires an amendment because this court acknowledged that Tietsworth was entitled to pursue contract and warranty claims in paragraphs 36 and 37 of its decision. ¶21 Id., ¶18. Harley petitioned for review, which this court granted on February 27, 2006. STANDARD OF REVIEW ¶22 Whether a circuit court has statutory authority to reopen a case is a question of statutory interpretation that we review de novo as a question of law. 2006 WI 68, ¶5, 291 Wis. 2d 333, Robin K. v. Lamanda M., 718 N.W.2d 38. Whether a circuit court has non-statutory authority to reopen a case also presents a question of law. Harvest Sav. Bank v. ROI Invs., 228 Wis. 2d 733, 737-38, 598 N.W.2d 571 (Ct. App. 1999); see Breier v. E.C., 130 Wis. 2d 376, 381, 387 N.W.2d 72, 74 (1986). This court is the final arbiter of the meaning of its own mandates, which we review as questions of law. ANALYSIS ¶23 This case requires the court to determine whether the circuit court had authority to reopen the case and grant leave to amend the complaint after the circuit court had dismissed the original dismissal determined complaint was in its affirmed that the on entirety appeal. circuit court 10 on the The erred merits court when of it and the appeals denied No. Tietsworth's motion to reopen the 2004AP2655 case under Wis. Stat. § 808.08(3) and when it denied his motion to file an amended complaint under Wis. Stat. § 802.09(1). Tietsworth III, 288 Wis. 2d 680, ¶25. On these grounds, the court of appeals reversed the and directed circuit court to allowing Tietsworth to file an amended complaint. ¶24 court enter an order Id. We reverse the court of appeals because the circuit did not have authority under Wis. Stat. § 808.08(3) to reopen this case for an amended complaint without a remand or order and therefore did not have authority to grant leave to amend Tietsworth's complaint under Wis. Stat. § 802.09(1). A. Wis. Stat. § 802.09(1) ¶25 We look first at Wis. Stat. § 802.09(1) and acknowledge that Wisconsin embraces a policy in favor of liberal amendment of pleadings.5 Wisconsin Stat. § 802.09(1) allows a party to amend the pleading "once as a matter of course at any time within 6 months after the summons and complaint are filed or within the time set in a scheduling order under s. 802.10." Under other circumstances, "a party may amend the pleading only by leave of court or by written consent of the adverse party." Wis. Stat. § 802.09(1). However, Wis. Stat. § 802.09(1) provides that "leave shall be freely given at any stage of the action when justice so requires." Wis. Stat. § 802.09(1) (emphasis added); see Jay E. Grenig, Wisconsin Practice Series: 5 All references to the Wisconsin Statutes are to the 200506 version unless otherwise noted. 11 No. 2004AP2655 Civil Procedure § 209.2, at 355 (3d ed. 2003) (stating, "The court has wide discretion in determining whether to permit the amendment of pleadings at any stage of the proceedings if justice so requires."). ¶26 The liberal policy embodied in Wis. Stat. § 802.09(1) does have limitations. The presumption in favor of amendment, which a is grounded "Pleadings, only Motions before and judgment Wis. Stat. ch. Ricciardi, in 802 2004 N.W.2d 675; Mach statute Pretrial has been (emphasis WI App v. 152, chapter Practice," entered added); Allison, Wis. 2d 686, 656 N.W.2d 766. whose in applies the Piaskoski ¶31, 275 2003 WI is entitled logically case. & See Assocs. v. Wis. 2d 650, App 11, 686 ¶27, 259 Once judgment has been entered, the presumption in favor of amendment disappears in order to protect the countervailing interests of the need for finality. ¶27 The present case does not implicate, or alter the interpretation of, Wis. Stat. § 802.09 and the policy in favor of liberal amendment of pleadings. Rather, the present case turns on whether the circuit court had authority to grant leave to amend Tietsworth's complaint after the circuit court had dismissed Tietsworth's claim in its entirety on the merits and Tietsworth appealed. Once the circuit court issued an order dismissing Tietsworth's complaint in its entirety and Tietsworth appealed that final order, the circuit court no longer had jurisdiction over the case. ¶28 If the court of appeals had affirmed the circuit court's dismissal of the complaint in Tietsworth I, the court of 12 No. 2004AP2655 appeals could have directed the circuit court to grant leave to amend Tietsworth's complaint. The court of appeals, however, reversed the circuit court's dismissal of the complaint. The decision to reverse and remand would have restored the circuit court's jurisdiction if the decision had not been appealed. But when Harley petitioned this court and this court granted review, the court of appeals also lost jurisdiction over the case. ¶29 When this court decided in Tietsworth II to reverse the court of appeals and dismissal of thereby Tietsworth's affirm complaint, became the law of the case. the this circuit court's court's decision At that point, neither the circuit court nor the court of appeals had authority to grant leave to amend Tietsworth's complaint without a clear directive from this court. B. Wis. Stat. §§ 808.08 and 808.09 ¶30 Whether this court granted the circuit court authority to reopen the case is thus an issue. examine Wis. Stat. §§ 808.08 and To resolve this issue, we 808.09, and the relevant language in Tietsworth II. ¶31 Wisconsin Stat. § 808.09 with several options on appeal: provides (1) an appellate the appellate court court may reverse, affirm, or modify the judgment or order; (2) it may order a new trial; or (3) if the appeal is from a part of the judgment or order, it may reverse, affirm, or modify that part of the judgment or order. Wis. Stat. § 808.09. "In all cases an appellate court shall remit its judgment or decision to the 13 No. court below and thereupon the court below accordance with the judgment or decision." ¶32 The explicit last directive sentence of to court "the clear authority to carry proceed out in Id. Wis. Stat. § 808.09 below" implement the "judgment or decision." has shall 2004AP2655 an "proceed" to is to Thus, the circuit court the mandate, whether the appellate court has affirmed or reversed the circuit court. The circuit court also has authority, without explicit direction, to address collateral matters costs, preparation and "left entry open" of in the necessary case, such documents, as and correction of clerical or computational errors, so long as these actions do not undo the decision of the appellate court. However, there can be no amendments in the trial court that conflict with the expressed or implied mandate of the appellate court. See 6A Callaghan's Wisconsin Pleading & Practice § 55.81 (4th ed. 2005) (citing State ex rel. Kurath v. Ludwig, 146 Wis. 385, 132 N.W. 130 (1911); Smith v. Armstrong, 25 Wis. 517, 1870 WL 4034 (1870)). ¶33 Wisconsin Stat. § 808.08 Wis. Stat. § 808.09. Entitled is "Further different proceedings from in trial court," it governs situations in which the appellate court has provided the circuit court with explicit orders or directions for further categories. proceedings. These situations fall into three Wisconsin Stat. § 808.08 reads: Further Proceedings in trial court. When the record and remittitur are received in the trial court: 14 No. 2004AP2655 (1) If the trial judge is ordered to take specific action, the judge shall do so as soon as possible. (2) If a new trial is ordered, the trial court, upon receipt of the remitted record, shall place the matter on the trial calendar. (3) If action or proceedings other than those mentioned in sub. (1) or (2) is ordered, any party may, within one year after receipt of the remitted record by the clerk of the trial court, make appropriate motion for further proceedings. If further proceedings are not so initiated, the action shall be dismissed except that an extension of the one-year period may be granted, on notice, by the trial court, if the order for extension is entered during the one-year period. ¶34 The issue in this case requires us to interpret subsection (3) of Wis. Stat. § 808.08 to determine whether the trial court had statutory further proceedings. authority to reopen the case for Subsection (1) of § 808.08 does not apply because Tietsworth II did not order "specific action" that is, Tietsworth II did not order the trial court to perform a "purely ministerial duty." See Findorff, 233 Wis. 2d 428, ¶20. Subsection (2) of § 808.08 does not apply because Tietsworth II did not order "a new trial." ¶35 under To determine whether the circuit court had authority Wis. Stat. § 808.08(3) proceedings, "[S]tatutory statute. we engage interpretation to reopen in 'begins the statutory with the case for further interpretation. language of the If the meaning of the statute is plain, we ordinarily stop the inquiry.'" State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110 15 No. 2004AP2655 (quoting Seider v. O Connell, 2000 WI 76, ¶43, 236 Wis. 2d 211, 612 N.W.2d 659). Except for technical or specially defined words, "statutory language is given its common, ordinary, and accepted meaning." ¶36 see that Id. Examining the language of Wis. Stat. § 808.08(3), we the "proceedings" statute be expressly "ordered." The provides common that "action" meaning of "order" is an "authoritative direction" or "command." Dictionary 372 (Albert & Loy Morehead eds., 1981). the or noun Webster's The American Heritage Dictionary of the English Language 1273 (3d ed. 1992), indicates that in law, an "order" is "a direction or command delivered by a court or other adjudicative body and entered into the record;" the instruction." verb "order" Therefore, means under to the "issue plain a command language of or the statute, subsection (3) is triggered if and when the appellate court directs, commands, or instructs (i.e., "orders") the circuit court to take "action" or proceedings other than the "specific action" or new trial described in subsections (1) and (2). ¶37 Findorff. This court had occasion to interpret subsection (3) in The court explained that Wis. Stat. § 808.08 Wis. Stat. § 801.58 have often been read together. 233 Wis. 2d 428, ¶15.6 6 and Findorff, The court was required to decide whether Wisconsin Stat. § 801.58(7) reads: If upon an appeal from a judgment or order or upon a writ of error the appellate court orders a new trial [e.g., § 808.08(2)] or modifies the judgment or order as to any or all of the parties in a manner such 16 No. Findorff was entitled to a substitution of judge 2004AP2655 after "the court of appeals reversed and remanded a circuit court decision" in Findorff's favor. the court's proceedings" Id., ¶2. instructions under The decision turned on whether on remand Wis. Stat. § 808.08(3) directed or "further a purely ministerial duty under § 808.08(1). ¶38 The court correctly ruled that subsection (3) ordering "further proceedings" "required the circuit court to exercise its discretion," thereby giving Findorff a right of substitution. In the course of the decision, the Findorff court said: [O]ur decision today comports with the traditional view that a circuit court often has some discretion on remand to resolve matters not addressed by a mandate in a manner consistent with that mandate. Fullerton [Lumber Co. v. Torborg, 274 Wis. 478, 483, 80 N.W.2d 461 (1957)]. In Fullerton, this court specifically stated that: Where a mandate directs the entry of a particular judgment, it is the duty of the trial court to proceed as directed. The trial court may, however, determine any matters left open, and in the absence of specific directions, is generally vested with a legal discretion to take such action, not inconsistent with the order of the upper that further proceedings in the trial court are necessary [e.g., § 808.08(3)], any party may file a request under sub. (1) [for substitution of judge] within 20 days after the filing of the remittitur in the trial court whether or not another request was filed prior to the time the appeal or writ of error was taken. Wis. Stat. § 808.58(7) (emphasis added). 17 No. 2004AP2655 court, as seems wise and proper under the circumstances. Id. "Specific action" is limited to purely ministerial duties to reflect this court's preference for providing a circuit court with discretion on remand. Findorff, 233 Wis. 2d 428, ¶25. ¶39 In the present case, the court of appeals incorrectly took the above-quoted language from Findorff and Fullerton and applied it in a different context. The court of appeals stated: "The mandate by the supreme court in this case simply 'reversed the decision of the court of appeals' and remanded the matter to the trial court." (emphasis added). Tietsworth III, 288 Wis. 2d 680, ¶14 However, Tietsworth II did not "remand" the case to the circuit court. The court of appeals added: "The mandate left open the opportunity for the plaintiffs to pursue contract and warranty claims." ¶15. Tietsworth III, 288 Wis. 2d 680, "[W]e conclude the trial court retained authority to grant Tietsworth's motion and, in fact, should have granted the motion to reopen." ¶40 appeals' court, Id., ¶20 (emphasis added). What is decision construed "discretion" to especially is that the startling misstated it about the mandate reopen a as case giving dismissed the court mandate of the on circuit the of this court merits, and implicitly gave Tietsworth a right of substitution as well. In sum, the court of appeals turned Tietsworth II into little more than an advisory opinion. To vindicate such action would be "to recognize . . . power to set at naught the judgments of this court." Kurath, 146 Wis. at 388. 18 No. ¶41 action 2004AP2655 When appellate courts intend to remand the case for or proceedings 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 this opinion." Brown County v. Shannon R., 2005 WI 160, 286 Wis. 2d 278, 324, 706 N.W.2d 269. "The decision of the court of appeals is reversed and the cause remanded." Id. "The decision of the court of appeals is reversed, and the cause is remanded to the circuit court for further proceedings consistent with this opinion." Mitchell Bank v. Schanke, 2004 WI 13, 268 Wis. 2d 571, 619, 676 N.W.2d 849. "The judgment of the Jackson County Circuit Court is reversed and the cause is remanded to the circuit court for further proceedings consistent with this WI 44, 290 opinion." State v. Fisher, 2006 Wis. 2d 121, 149, 714 N.W.2d 495. "The decision of the court of appeals is affirmed, and the case is remanded to the circuit court for further proceedings in accord with this opinion." State v. Mark, 2006 WI 78, 292 Wis. 2d 1, 28, 718 N.W.2d 90. "The decision of the court of appeals is reversed and the cause is remanded to the circuit court for further proceedings consistent with this opinion." State v. Brown, 2006 WI 100, 293 Wis. 2d 594, 636, 716 N.W.2d 906. "The decision of the court of appeals is affirmed in part; reversed in part, and the cause is remanded 7 These mandate lines could also be used when appellate courts are ordering "specific action" under Wis. Stat. § 808.08(1) or "a new trial" under Wis. Stat. § 808.08(2). Cf. State ex. rel. J.H. Findorff & Son, Inc. v. Circuit Court for Milwaukee County, 2000 WI 30, ¶¶20-21, 233 Wis. 2d 428, 608 N.W.2d 679. 19 No. 2004AP2655 to the circuit court for further proceedings consistent with this opinion." Megal v. Green Bay Area Visitor & Convention Bureau, 2004 WI 98, 274 Wis. 2d 162, 181-82, 682 N.W.2d 857. "Reversed and cause remanded for further proceedings consistent with this opinion." Johnson v. Rogers Mem'l Hosp., Inc., 2005 WI 114, 283 Wis. 2d 384, 421, 700 N.W.2d 27. C. Relevant Language in Tietsworth II ¶42 Our mandate line in Tietsworth II read nothing like the mandate line in the above-cited cases. It did not read like the mandate line at issue in Fullerton: "Judgment reversed, and cause remanded for further proceedings in accordance with this opinion." Fullerton, 274 Wis. at 488. It did not read like the September 16, 1997, mandate line at issue in Findorff: "Judgment reversed and lengthy, cause detailed remanded final with directions" paragraph). See (preceded Findorff, by a 233 Wis. 2d 428, ¶37. ¶43 the The mandate in Tietsworth II states, "The decision of Court of Wis. 2d at 172. Appeals is reversed." Tietsworth II, 270 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. ¶44 There is no reference to a remand. If we had wanted to allow the trial court to take further action, we would have specified as much in the mandate or by clear directive in the text of the opinion. 20 No. ¶45 2004AP2655 If we search the opinion for aid in construing the mandate, we find further evidence that this court intended that, upon reversing the court of appeals, this case would be ended. In paragraph 2 of Tietsworth II, we stated that "[t]he circuit court dismissed the entire action for failure to state a claim." Tietsworth II, 270 Wis. 2d 146, ¶2 (emphasis added). In paragraph 10, we stated again, "The Milwaukee County Circuit Court . . . granted Harley s motion, dismissing the complaint in its entirety for failure to state a claim." added). These that circuit the merits. statements court Therefore, reflect dismissed when this this court s the court Id., ¶10 (emphasis understanding entire action on the reversed the court of appeals without remand, it affirmed the circuit court s judgment dismissing the entire action. ¶46 In her dissent in Tietsworth Abrahamson acknowledged as much. II, Chief Justice After stating that "[t]his case comes to us on a motion to dismiss a complaint," id., ¶48, the Chief Justice added that "[t]he majority opinion dismisses the plaintiffs' complaint," id., ¶94; see also ¶48 ("The majority opinion dismisses this claim . . . ."), and ¶49 ("The majority dismisses the second claim . . . ."). ¶47 Paragraphs 36 and Tietsworth claims "explicitly must the be read in context 37 in Tietsworth recognize" in which II, which his contract claims, they appear. These paragraphs are near the end of a 15-paragraph discussion of the economic loss doctrine and describe court's version of the doctrine. 21 a specific part See id., ¶¶23-37. of this They are No. fairly interpreted as this court's explanation 2004AP2655 of the application of the economic loss doctrine to fraud claims.8 In effect, the court simply recognized that, although the economic loss doctrine bars tort claims, plaintiffs may have a remedy in contract claims.9 8 Tietsworth relies on the following language to assert that this court allowed Tietsworth to pursue any potential contractbased claims: As such, the plaintiffs have warranty remedies for the alleged defects in their motorcycles. In addition, there are contract remedies at law and in equity to the extent that the plaintiffs were fraudulently induced to purchase their motorcycles. . . . In short, we see no reason to recognize an exception to the economic loss doctrine to allow this consumer contract dispute to be remedied as an intentional misrepresentation tort. . . . 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 II, 270 Wis. 2d 146, ¶¶36-37. 9 We agree with Guolee s statements: Milwaukee County Circuit Court Judge Now, I think it is very clear here when I read the totality of the decision by Judge Sykes that this language was not a grant to allow these claims or amendment of these claims. When we look at her decision, the paragraph that included the warranty remedy language was preceded by discussion of the Huron Tool exception to the Economic Loss Doctrine. This is a major issue that has been before the Supreme Court and there s been some controversy on this, the economic loss doctrine. That was what she was really talking about. The Court noted that the 22 No. D. 2004AP2655 Option To Clarify Mandate ¶48 Tietsworth contends that he believes paragraphs 36 and 37 of Tietsworth II invited the circuit court to allow amendment of his complaint. This contention is implausible because Tietsworth's initial action after appeal was to file an entirely new lawsuit, e.g., Tietsworth 2004, instead of seeking to amend the original complaint. If Tietsworth believed the mandate favored reopening the case, he should have filed a motion under Wis. Stat. § (Rule) 809.14 to clarify the effect of our mandate or a motion 809.64.10 for reconsideration under Wis. Stat. § (Rule) See Johann v. Milwaukee Elec. Tool Corp., 270 Wis. 573, 579, 72 N.W.2d 401 (1955) (finding that where party finds any ambiguity in the opinion or the mandate the proper place to [Huron Tool] exception did not apply to this case, because the fraud alleged pertained to the character and quality of the goods that were the subject of the matter of the contract. The following paragraph stated as such. The plaintiffs have warranty remedies. Now, by saying this, these warranty remedies were never brought up by the plaintiff or addressed by the Court. The Court was simply implying that economic loss doctrine would not bar these claims . . . not that the plaintiff would be allowed to bring them. 10 Wisconsin Stat. § (Rule) 809.14 (Motions) provides, "A party seeking an order or other relief in a case shall file a motion for the order or other relief . . . ." Wisconsin Stat. § (Rule) 809.64 (Reconsideration) provides, "A party may seek reconsideration of the judgment or opinion of the supreme court by filing a motion under s. 809.14 for reconsideration within 20 days after the date of the decision of the supreme court." 23 No. 2004AP2655 raise the issue is before the court that issued the mandate and not before the trial court); State ex rel. Lisbon Town Fire Ins. Co. v. Crosby, 240 Wis. 157, 159, 2 N.W.2d 700 (1942); State ex rel. Blackdeer v. Township of Levis, 176 Wis. 2d 252, 260, 500 N.W.2d 339 (Ct. App. 1993).11 ¶49 promotes Parties should finality and follow protects procedure issued the it judicial scarce because resources by resolve any permitting the court ambiguity. Cf. Blackdeer, 176 Wis. 2d at 260 n.4. E. that this mandate to General Rule ¶50 From general rule. line or some this discussion, it is possible to state a In the absence of a remand order in the mandate 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 complaint. no authority to reopen the case for an amended This general rule is designed to assure compliance 11 Parties often file these motions to clarify a mandate. For example, in Kenosha Hospital & Medical Center v. Garcia, 2004 WI 137, 276 Wis. 2d 359, 688 N.W.2d 462, plaintiffs filed a motion in this court asking us to clarify "the directions upon remand as to whether Kenosha Hospital should be allowed to conduct further discovery to support its claim." n Metropolitan Ventures, LLC v. GEA Associates, 2007 WI 23, ___ Wis. 2d ___, 727 N.W.2d 502, plaintiffs asked this court to clarify the issues on remand to eliminate any needless arguments about this court s holdings in Metropolitan Ventures, LLC v. GEA Associates, 2006 WI 71, 291 Wis. 2d 393, 717 N.W.2d 58. In Hardware Mutual Casualty Co. v. Mayer, 11 Wis. 2d 58, 69, 105 N.W.2d 322 (1960), the parties asked this court to clarify its mandate because the parties differed as to the meaning of this court s language near the end of the opinion. 24 No. with the appellate court's decision. 2004AP2655 It conforms to the long- established principle that "a judgment of a trial court when affirmed by this court becomes in legal effect the judgment of this court and the trial court has no power to vacate or set it aside." Hoan v. Journal Co., 241 Wis. 483, 485, 6 N.W.2d 185 (1942).12 F. Policy Interests ¶51 fairness, Our holding today furthers the interests in finality, and efficiency by holding parties responsible for their deliberate choice of strategy and by preventing piecemeal litigation. system. 1993). It also enforces compliance within the judicial See Ins. Corp. of Am. v. Barker, 628 A.2d 38, 41 (Del. The holding protects the interest in finality by preventing Tietsworth from having another "kick at the cat." See Sutter, 69 Wis. 2d at 715. 12 This holding is consistent with the rule in other jurisdictions. See, e.g., Madeksho v. Abraham, Watkins, Nichols, & Friend, 112 S.W.3d 679, 695-96 (Tex. App. 2003) (holding that where "the judgment of the trial court is simply affirmed, there is no reinvestiture of any 'jurisdiction' (limited or otherwise) in the trial court"); Griset v. Fair Political Practices Comm n, 23 P.3d 43, 51 (Cal. 2001) (holding unqualified affirmance ordinarily sustains judgment and ends litigation; therefore, trial court did not have jurisdiction to reopen case once supreme court s decision became final); Waterhouse v. Iowa Dist. Ct. for Linn County, 593 N.W.2d 141, 142 (Iowa 1999) (holding that in absence of remand directing further proceedings in trial court, jurisdiction of district court terminates both as to parties and subject matter when district court judgment has been affirmed); see also State ex rel. Frazier & Oxley, L.C. v. Cummings, 591 S.E.2d 728 (W.Va. 2003); Ins. Corp. of Am. v. Barker, 628 A.2d 38 (Del. 1993). 25 No. ¶52 The record kicks so far. indicates that Tietsworth has 2004AP2655 had many Tietsworth commenced litigation in June 2001. Since that time, his action has been heard two times in the circuit court, two times in the court of appeals, and now two times in this court. Tietsworth also filed a second action, Tietsworth 2004, in the circuit court that was barred by claim preclusion. filed His counsel, representing overlapping plaintiffs, another class action, Jones, that failure to state a claim, but not appealed. to continue allowing a with new party claims to file would a have claim was dismissed for To allow Tietsworth the after same the effect as statute of limitations has expired: finality and predictability would be jeopardized, and the evidence might be stale. Sutter, "It is desirable that litigation As we stated in come to an end." Sutter, 69 Wis. 2d at 716. ¶53 As noted above, our holding is not at odds with the sensible principle stated in Fullerton that a trial court may determine any matters left open by the higher court as long as the determination is not inconsistent with the higher court s mandate.13 Fullerton, 274 Wis. at 483. In Fullerton, the plaintiff business was seeking an injunction and damages against the defendant, its former employee, for violating a restrictive covenant not to compete. The trial court held that the covenant 13 In Fullerton Lumber Co. v. Torborg, 274 Wis. 478, 482, 80 N.W.2d 461 (1957), the court cited Wis. Stat. § 274.35(1) (1955), as the source of authority for the trial court to act on matters "left open." This statute is the predecessor of Wis. Stat. § 808.09, not Wis. Stat. § 808.08. 26 No. was invalid. trial "The This court reversed, remanding the case to the court covenant. 2004AP2655 to determine the appropriate duration of the The opinion instructed the lower court as follows: judgment is reversed, and the cause remanded for a determination by the trial court of the extent of time as to which the restrictive operations in plaintiff's covenant Clintonville protection, from a breach thereof." ¶54 Upon establish the and respect reasonable for judgment to and defendant's necessary enjoining for defendant Id. at 480. remand, amount is with the of trial damages, court judge stating, "If refused [the to supreme court] wanted me to also establish damages and take testimony I suppose [it] would have said a new trial is granted for the purpose of determining damages." Id. at 481. This court reversed, holding that the trial court should have established damages because the plaintiff's motion was not inconsistent with this court's mandate and directions. This court stated, "The trial court may, however, determine any matters left open, and in the absence of specific directions, is generally vested with a legal discretion to take such action, not inconsistent with the order of the upper court, as seems wise and proper under the circumstances." ¶55 Id. at 483. Fullerton may be distinguished from this case as one where the higher court did not resolve all issues pertaining to the claim and specifically remanded the case to the trial court for further proceedings. In Fullerton, this court had issued the following mandate in the first appeal: "Judgment reversed, 27 No. 2004AP2655 and cause remanded for further proceedings in accordance with this opinion." Fullerton Lumber Co. v. Torborg, 270 Wis. 133, 148, 70 N.W.2d 585 (1955) (emphasis added). The mandate was clear, therefore, that this court intended to vest authority in the trial court to take further proceedings. This court could have mandated further proceedings in this case, but it chose not to do so. ¶56 did In addition, this court s reversal in Tietsworth II not leave Tietsworth open argues unresolved. any unresolved that However, his these issues as contract-based claims do not in Fullerton. claims remain remain unresolved because he chose not to allege them in his original pleadings or to amend the pleadings while the case was still in the trial court. Therefore, these claims were not part of this action. ¶57 Tietsworth also argues that the trial court should have authority to reopen the case and allow the amendment of the pleadings because this court s reversal in Tietsworth II, which affirmed the trial court's dismissal of the complaint, did not constitute a final judgment on the merits. In Sutter, we stated that "[a]fter final judgment has been rendered or directed on appeal, ordinarily the trial court has no power to allow the amendment of the pleadings." ¶58 principle reversal Tietsworth does does See Sutter, 69 Wis. 2d at 717. seeks a ruling not apply in this not equal a final that case the Sutter because judgment on finality this court s the merits. However, a dismissal for failure to state a claim is a judgment on the merits. See Juneau Square Corp. v. First Wis. Nat l 28 No. Bank, 122 Wis. 2d 673, 686, 364 N.W.2d 164 (Ct. 2004AP2655 App. 1985) (citing Federated Dep't Stores, Inc. v. Moitie, 452 U.S. 394, 399 n.3 (1981)); cf. Medved v. Baird, 58 Wis. 2d 563, 567, 207 N.W.2d 70 (1973). ¶59 state It is suggested that the circuit court s failure to whether its dismissal was "with prejudice" confusion as to the finality of the judgment. created Of course, the circuit court may have been willing to consider an amendment of the complaint Tietsworth in February appealed, he or March forced the 2002. issue However, and when resolved any ambiguity, if there were any, as to whether the circuit court s dismissal was with or without prejudice: Tietsworth deemed it to be with prejudice. Tietsworth would not have been able to appeal his claim to the court of appeals without permission if the circuit court had not dismissed his claim with prejudice, thus constituting a final judgment on the merits. See Wis. Stat. § 808.03(1) (stating that "[a] final judgment or a final order of a circuit court may be appealed as a matter of right to the Habhegger, court 2006 WI of appeals"); App 147, ¶1 Plourde n.2, ex rel. State 294 Wis. 2d 746, v. 720 N.W.2d 130 (stating that party could not appeal order denying motion for summary judgment without permission because order was a nonfinal order). ¶60 appeals Accordingly, in dismissal Tietsworth as Wis. 2d at 686. a final when II, this court reversed it affirmed the judgment. See the circuit Juneau court of court's Square, 122 Without an "order" for further proceedings by 29 No. 2004AP2655 this court in the mandate line or in some other clear directive, the circuit court lacked statutory authority to grant Tietsworth leave to amend his complaint. ¶61 Our decision in See Hoan, 241 Wis. at 485.14 this matter promotes finality and fairness by holding parties responsible for the consequences of their deliberate "Justice does choices not of require strategy. that As plaintiffs stated be their day in court." his twice Sutter, 69 Wis. 2d at 719. had wanted to amend complaint to add or in Sutter, afforded If Tietsworth substitute the contract-based claims, he should have sought leave to amend the complaint with Judge Haese in 2001 or early 2002. Tietsworth, however, appeal chose a different strategy he dismissal of his tort claims. chose to the At that point, he waived his opportunity to amend his complaint in the trial court and to assert a new cause of action absent permission from a reviewing court. See State ex rel. Freeman Printing Co. v. Luebke, 36 Wis. 2d 298, 304, 152 N.W.2d 861 (1967) (stating, "An appeal from a final judgment would normally remove the complete case from the trial court at the time the appeal was perfected."). ¶62 Tietsworth cannot argue that he was not aware of the contract-based claims at the time he filed the complaint in the 14 The circuit court s dismissal of Tietsworth 2004 under the theory of claim preclusion supports this conclusion. The court in that case recognized that this court s dismissal of Tietsworth s claims in Tietsworth II operated as a final judgment and therefore precluded subsequent claims. If the court in Tietsworth 2004 did not think our dismissal was a final judgment, it would have allowed Tietsworth to proceed. 30 No. trial court. 2004AP2655 On June 28, 2001, when Tietsworth first filed his complaint, the law was well established as to the viability of contract-based claims.15 ¶63 for In addition, by his own admission at the oral argument Tietsworth II on November 5, 2003, Tietsworth s counsel recognized that contract causes of action were available. In response to a question why he did not pursue contract claims, Tietsworth s counsel explained that he was not obligated to have one cause of action from one set of facts, that he could have tort and contract causes of action at the same time.16 When asked why he did not sue for breach of warranty, Tietsworth s counsel replied that he had sued Harley for breach of warranty 15 See First Nat l Bank & Trust Co. of Racine v. Notte, 97 Wis. 2d 207, 225, 293 N.W.2d 530 (1980) (stating that a contract fraudulently induced is void or voidable and a party fraudulently induced to enter into a contract "has the election of either rescission or affirming the contract and seeking damages"). 16 The dialogue occurred as follows: COURT: So why shouldn t they then abide by their contract causes of action and not a tort cause of action? ATTORNEY: That's a very good question and part of the answer here is . . . that you're not obligated to only have one cause of action. As this court has recognized, it's often the case that the same set of facts will give rise to multiple causes of action. I think Your Honors' opinion just this year recognized that it's often the case that you can have a contract claim as well as a tort claim arising from the same set of facts. There's nothing novel about that. 31 No. 2004AP2655 in a separate action (Jones) shortly after the circuit court dismissed Tietsworth 2001 but that the circuit court had dismissed Jones for failure to state a claim.17 ¶64 in Tietsworth cannot assert, however, that the decision Jones deterred him contract-based claims. from amending his complaint to add Tietsworth s counsel filed his notice to appeal the dismissal of Tietsworth s tort claims the same day he filed the Tietsworth s Jones contract decision to complaint. appeal, rather This than shows to that amend his complaint, was not affected by the subsequent Jones decision. ¶65 revealed claims: Also the during reason Tietsworth oral why wanted argument, Tietsworth punitive did Tietsworth s not damages. pursue As counsel contract Tietsworth s counsel was explaining the limitations of a warranty claim, he 17 The dialogue occurred as follows: COURT: Counselor, even if there wasn't back and forth negotiation, can't your client still sue for breach of warranty? I mean, you have to negotiate for it to be able to use it, do you? ATTORNEY: You would think we would be able to sue for breach of warranty, and after this case was dismissed at the trial court level, we brought a lawsuit for breach of warranty, and Harley-Davidson stood up and made precisely the same arguments with regard to our warranty claims that they made with regard to these claims. They said, "Ah, until your motorcycle fails; until you're stranded in the middle of nowhere, you don't have a cause of action under warranty," and they prevailed upon that. 32 No. 2004AP2655 stated that one of the limitations was that "it [would] wipe out the ability to seek punitive damages."18 When asked whether Tietsworth was seeking punitive damages, counsel replied that he was.19 18 The dialogue occurred as follows: COURT: Why, why would the manufacturer immunize itself by giving a warranty . . . ? Don't they just provide an overt cause of action that otherwise you'd have to argue is implied? ATTORNEY: They would provide an overt cause of action under a warranty that they have unilaterally issued and whose terms they've decided with limitations, with limitations on what you can recover and how you can recover, they can wipe out your common law claims; they can wipe out your right to pursue claims based on all of their fraud that proceeded the sale simply by giving you a contract claim. And, for example, it would wipe out the ability to seek punitive damages. COURT: Well, that s because contracts don t have punitive damages in Wisconsin, but . . . ATTORNEY: Right 19 The dialogue occurred as follows: COURT: Are you case? seeking punitive damages in this ATTORNEY: We are not seeking punitive damages in this case. COURT: You were seeking punitive damages? ATTORNEY: Well, I m sorry, I misspoke, Your Honor. We are under the fraud, the common law claim, we are seeking punitive damages, Your Honor. I apologize; I misspoke. 33 No. ¶66 2004AP2655 It appears then that Tietsworth deliberately chose a strategy to pursue tort claims for the opportunity to recover punitive damages. When a member of the court observed that Tietsworth heavy had a burden to establish tort claims, Tietsworth s counsel replied, "We ve got a tough case to prove. We think we can prove it." Tietsworth knew, therefore, that he had chosen a tough strategy. Tietsworth had every right to choose that strategy, but by doing so, he risked losing the opportunity to pursue other causes of action, and he must now accept the consequences. CONCLUSION ¶67 We reverse the court of appeals and affirm the circuit court's judgment denying Tietsworth's motion to reopen the case. When this litigation came before this court in Tietsworth II, both the circuit court and the court of appeals were divested of any authority to grant leave to amend Tietsworth's complaint without permission from this court. Our decision in Tietsworth II, which affirmed the circuit court's dismissal of Tietsworth's complaint in its entirety, became the law of the case. In the absence of a remand order in the mandate line or some other clear directive from this court in Tietsworth II, the circuit court had no authority to reopen the case for an amended complaint after this court had affirmed the dismissal of the complaint in its entirety on the merits. By the Court. The decision reversed. 34 of the court of appeals is No. ¶68 SHIRLEY S. ABRAHAMSON, C.J. 2004AP2655.ssa (dissenting). The parties, the circuit court, and the court of appeals ask just what did this court mean in Tietsworth v. Harley-Davidson, Inc., 2004 WI 32, 270 Wis. 2d 146, 677 N.W.2d 233 (Tietsworth II), when this court announced that it reversed the decision of the court of appeals.1 More specifically they ask, may the plaintiffs reopen the case and amend their complaint or are they barred from pursuing these actions? ¶69 The circuit court denied the plaintiffs' motion reopen the case, holding that it lacked authority to do so. to The court of appeals reversed the circuit court, holding that the plaintiffs were entitled, as a matter of law, to reopen and amend their complaint. ¶70 In trying to resolve the case, the majority opinion adopts a new rule (apparently interpreting Wis. Stat. §§ 808.08 and 808.09), holding as follows: "[I]n the absence of a remand order in the mandate line or some other clear directive from the appellate court ultimately deciding the appeal, a circuit court has no authority to reopen the case for an amended complaint after an appellate court has affirmed the complaint in its entirety on the merits." 67. See also majority op., ¶50. dismissal of the Majority op., ¶¶2, The majority opinion thus devises a new, special rule to reach its result. 1 The majority opinion identifies this decision as Tietsworth II, and for ease of reading I will use the same designation. 1 No. ¶71 Clear, are valuable. easy to easy-to-apply rules that are 2004AP2655.ssa not manipulable The majority opinion's new rule, however, is not apply, is susceptible to manipulation, and creates tensions and inconsistencies with past precedent. ¶72 Moreover, this new rule is at one and the same time too broad to address the facts of the present case and too narrow to govern other fact situations. opinion recognizes this majority severely latter curtails Indeed, the majority deficiency undercuts and of its its rule. The rule with new language interpreting Wis. Stat. § 808.09 in paragraph 32 of the majority opinion. This language endorses the traditional, oft- repeated precedential rule relating to a circuit court's power after appellate review and, in effect, engulfs and replaces the textual holding.2 ¶73 Paragraph 32 explicitly recognizes that a circuit court has "clear authority to carry out the mandate [of the appellate court], whether the appellate court has affirmed or reversed the circuit court" and "also has authority, without explicit direction, to address collateral matters 'left open' in the case, such as costs, preparation and entry of necessary documents, and correction of clerical or computational errors, so long as these appellate court. actions do not undo the decision of the However, there can be no amendments in the 2 See State ex rel. J.H. Findorff & Son, Inc. v. Circuit Court for Milwaukee County, 2000 WI 30, ¶25, 233 Wis. 2d 428, 608 N.W.2d 679, quoting with approval J.H. Fullerton Lumber Co. v. Torborg, 274 Wis. 478, 483, 80 N.W.2d 461 (1957) (discussed at ¶106 and notes 13, 14 of this dissent). 2 No. 2004AP2655.ssa trial court that conflict with the expressed or implied mandate of the appellate court." Majority op., ¶32. In other words, the circuit court "may permit amendments which are not contrary to the decision of the reviewing court on appeal."3 Contrary to the new rule adopted by the majority opinion, matters remain within the circuit court's discretion and may very well include amendment of the pleadings, so long as they do not conflict with the decision of the appellate court. ¶74 In contrast with the majority opinion and in accord with the decision of the court of appeals, I conclude that the circuit court retained authority to implement the appellate court's decision in Tietsworth II that left open the plaintiffs' right to pursue contract and warranty claims. I further conclude that the Tietsworth II decision falls within Wis. Stat. §§ 808.08(3) and 808.09 (2003-04),4 which empower court to reopen a case for further proceedings. a circuit Furthermore, § 802.09(1) authorizes the circuit court, in its discretion, to grant the plaintiffs leave to amend the complaint to pursue the contract and warranty Tietsworth II decision. ¶75 remedies this court recognized in the I therefore dissent. I would remand this cause to the circuit court and have it decide, within its discretion, whether the plaintiffs 3 6A Callaghan's Wisconsin Pleading & Practice, § 55:81 (4th ed. 2005) (citations omitted). 4 All references to the Wisconsin statutes are to the 200304 version unless otherwise noted. 3 No. 2004AP2655.ssa should be granted leave under Wis. Stat. § 802.09(1) to amend their pleadings to raise the contract and warranty claims. ¶76 follows: I have organized my discussion in this dissent as Part I briefly looks at the changed nature of supreme court review upon the creation of the court of appeals in 1978. Part II critiques the majority opinion's new rule by applying it to the present case. Part III examines and applies Wis. Stat. §§ 808.08(3) and 808.09 to the present case. § 802.09(1). I conclude that the Part IV discusses mandate line is not dispositive of the power of the circuit court after review; the decision is. I ¶77 This case must supreme court's present be examined review of in the decisions context of the of the court of appeals in contrast to the supreme court's direct consideration of trial court orders and judgments before 1978. Before 1978, that is, before the creation of the court of appeals, this court would directly review an order or judgment of a trial court. If in a pre-1978 appeal the supreme court announced its affirmance of a circuit court order or judgment, the trial court's order or judgment became in effect the judgment of this court.5 5 Hoan (1942). v. Journal Co., 241 4 Wis. 483, 485, 6 N.W.2d 185 No. ¶78 2004AP2655.ssa Since 1978, upon granting a petition for review,6 the supreme court reviews the decision of the court of appeals, not the judgment or order of the circuit court.7 This court does not ordinarily affirm a judgment or final order of a circuit court on review.8 Any such affirmance must be read into the decision by examining the reasoning of decision the appeals. of court of this court's A decision careful and reading the of Tietsworth II demonstrates that the decision never explicitly affirmed the circuit court.9 6 This court also accepts cases on certification from the court of appeals and on bypass. In these instances, the court takes a direct appeal from the circuit court and decides whether to affirm or reverse a judgment or order of the circuit court. The present case is here on a petition to review a decision of the court of appeals, not certification or bypass. 7 Although the supreme court reviews the decision of the court of appeals, the supreme court is directed to remit, that is to send back, to the circuit court the circuit court record and the supreme court's decision (unless the court of appeals is to act further). The process by which the decision and mandate of the appellate court, along with the circuit court record, are returned to the circuit court is referred to as remittitur. Wis. Stat. (Rule) § 809.26. 8 Occasionally a decision of this court on a petition for review explicitly affirms the circuit court's order or judgment. See, e.g., State v. Jenich, 94 Wis. 2d 74, 288 N.W.2d 114 (1980). There, the text announced an affirmance of a circuit court order. The mandate line in Jenich also expressly stated: "Decision of the court of appeals is reversed; order of the circuit court is affirmed." 9 The majority opinion supports its conclusion that this court affirmed the judgment or final order of the circuit court by snipping and pasting various phrases in Tietsworth II that describe the order of the circuit court as dismissing the complaint in its entirety, and then bootstraps a conclusion that in reversing the court of appeals this court "affirmed the circuit court's judgment dismissing the entire action." Majority op., ¶45. 5 No. ¶79 The majority opinion conveniently 2004AP2655.ssa ignores that upon granting a petition for review this court does not review a judgment or order of the circuit court and repeatedly and mistakenly asserts that in Tietsworth II this court affirmed the circuit court's dismissal of the complaint. majority op., ¶¶29, 43, 45. Moreover, the See, e.g., majority opinion equates this court's reversal in Tietsworth II of the decision of the court of appeals (which in turn reversed the circuit court's order of dismissal) not only with an affirmance of the circuit court's dismissal of the tort claims but also with an affirmance of time. Care a dismissal must of be taken all not plaintiffs' to fall for claims this for all sleight of argument. ¶80 court Nothing in Tietsworth II explicitly states that this is affirming the circuit court's dismissal of the complaint, let alone that this court is affirming the dismissal of the entire complaint for all time. ¶81 Moreover, beware of references to our pre-1978 case law, especially regarding the mandate line. Before 1978, this court directly reviewed circuit court judgments and orders and formulated mandate lines and decisions to that effect. 1978, the court also used a different style Before manual that instructed the justices and staff regarding acceptable mandate lines. ¶82 The Wisconsin Supreme Court Style and Procedures Manual presently in use states that although the mandate line 6 No. 2004AP2655.ssa gives direction, instructions are also given in the body of the decision. It states as follows: The mandate line gives the court's decision. If it is necessary to include further instructions or direction to another court, that information may be placed in the last paragraph or two of the opinion where it can be easily located. If another court is to take specific action, it is essential that a specific court be mentioned. The Style and Procedures Manual provides an illustrative, nonexhaustive list of mandate lines, but the use of these mandate lines is not required. As the examples set forth in the majority opinion at ¶41 illustrate, the framing of the mandate lines varies. ¶83 The mandate line cannot be taken as the dispositive interpretative tool to our decisions. The decision must be read along with the mandate line. ¶84 I turn now to critique the majority opinion's new rule by applying it to the present case. II ¶85 I have organized this part of my dissent as follows: (A) A critique of the majority's new rule requiring the word "remand" in the mandate and the application of this rule to the present case. (B) A critique of the majority's new rule requiring "some other clear directive" and the application of this rule to the present case. (C) The significance to the present case of paragraph 32 in the majority opinion and the traditional case law 7 No. 2004AP2655.ssa approach to a circuit court's power after a decision of an appellate court and their application to the present case. A. "Remand" in the Mandate ¶86 As part of its holding, the majority opinion fashions a new rule that requires that the mandate line state that the cause is being remanded or that the appellate court provide some other clear directive in order for the circuit court to have authority to reopen the case for the amendment of pleadings. I begin with the first of these requirements: "remand." ¶87 mandate The majority opinion endows the word "remand" in the line with magical powers, in spite of the court's ordinary reluctance to require the use of magic words or phrases to command results. ¶88 II The initial line (the disposition) in our Tietsworth decision simply simply states, reversed." ¶89 "The states: "Reversed" decision of and the the court mandate of appeals line is Tietsworth II, 270 Wis. 2d at 151, 172. The majority opinion's interpretation of Tietsworth II turns on these two lines of the lengthy decision. The majority opinion's reasoning, and its holding for future cases, primarily rest on this court's omission in Tietsworth II of the words "and cause remanded" after "reversed," and the cause remanded" in the court's the initial omission mandate line. word of of disposition, the same words The majority "and opinion concludes that "[i]f we had wanted [in Tietsworth II] to allow the trial court to take further action, we would have specified as much in the mandate . . . ." Majority op., ¶44. 8 No. 2004AP2655.ssa ¶90 The word "remand" does not have the same meaning as "remit." The process by which the decision and mandate of the appellate court, record, are returned to the circuit court is referred to as remittitur. The last sentence along of with Wis. the Stat. circuit § 808.09 court is both a remittitur provision and a direction to the circuit court to proceed when it gets the remittitur. It states that "[i]n all cases an appellate court shall remit court below and thereupon its the judgment court or below decision shall to proceed the in accordance with the judgment or decision." See also Wis. Stat. (Rule) § 809.26 (relating to remittitur). The supreme court need not use the word "remand" in the mandate line for the case to be returned (that is, remitted) to the circuit court and for the circuit court to take further action. Section 808.08 supplements § 808.09 and discusses further proceedings in the trial court after remittitur. ¶91 Notably, our disposition and mandate in Tietsworth II did not prohibit the plaintiffs from reopening their complaint to plead the contract and warranty claims we had recognized. They did not explicitly order that the action be dismissed in its entirety. They did not explicitly direct that a judgment of dismissal be entered. ¶92 Although the majority opinion penalizes the plaintiffs because the court did not use the magic word "remand" in the mandate line, the majority opinion nonetheless recognizes that mandate lines may be Delphic interpretations. 9 and open to competing No. ¶93 The majority opinion acknowledges 2004AP2655.ssa that motions have been filed in this court to clarify a mandate, see majority op., ¶48. Indeed, the majority opinion even faults the plaintiffs for not bringing a motion to clarify the mandate. ¶48. This criticism misses the mark. Majority op., One reason the plaintiffs may not have sought clarification is that they believed that Tietsworth II allowed them to amend the complaint to assert the contract and warranty claims the decision explicitly stated were available. procedure Furthermore, rules do not this court's explicitly appellate authorize practice and motion for the clarification that the majority opinion embraces. Although such a motion may be a good idea and the court has responded to such motions, they are not the only recognized way to proceed.10 ¶94 Commentary on appellate practice often complains that appellate decisions are not clear regarding what, if anything, should happen when the trial court record and court's decision are returned to the trial court. 10 the supreme Appellate The defendant suggests that the procedural remedy may be to move the court to reconsider under Wis. Stat. § 809.64 and the Internal Operating Rules, § II J. In Johann v. Milwaukee Electric Tool Corp., 270 Wis. 573, 579, 72 N.W.2d 401 (1955), the court concluded (without citation) that when filing its motion for a rehearing (now a motion for reconsideration) the party should have raised any question about any ambiguity in the remand. Johann does not speak to a case in which no party seeks a motion for rehearing or reconsideration. It is also arguable that the remedy of a party aggrieved when a circuit court does not follow a mandate of an appellate court is to seek mandamus in the appellate court that issued the decision. See, e.g., Litzen v. Eggert, 238 Wis. 121, 123, 297 N.W. 382 (1941); State ex rel. Blackdeer v. Township of Levis, 176 Wis. 2d 252, 259, 500 N.W.2d 339 (Ct. App. 1993); 6A Callaghan's Wisconsin Pleading & Practice, §55:82 (4th ed. 2005) (citations omitted). 10 No. 2004AP2655.ssa courts are urged to spell out the consequences, if any, of a decision for further proceedings. of the majority opinion, In fact, the mandates at ¶41 which the opinion offers as illustrations, are typical of mandates that are criticized as not helpful.11 ¶95 The meaning of a mandate line must be deciphered by applying a generally accepted rule of interpretation: Interpret words in their context. Thus, the mandate line must be interpreted in light of the text of the lengthy decision itself. The majority opinion, despite the rigid and formalistic components of its rule, actually agrees with this interpretive approach. Majority op., ¶47. I now attempt to apply it. B. "Some Other Clear Directive" ¶96 The failure of the mandate line to include the word "remand" does not sink the circuit court's powers. The majority opinion allows a circuit court to reopen a case and amend the 11 Barbara Green, Cracking the Code: Interpreting and Enforcing the Appellate Court's Decision and Mandate, 32 Stetson L. Rev. 393, 394, 402 (2002) (discussing the difficulties involved with deciphering mandates from the appellate court and announcing that "it would be helpful for appellate courts to give clear guidance to the trial court and to the parties" following remand). Green chides appellate courts, writing that trial courts and lawyers sometimes need to look for a "Rosetta Stone" to decipher appellate mandates. Id. at 393. According to this author, the mandate lines set forth in the majority opinion at ¶41 do not satisfy the standards of clarity recommended in this article. Nancy A. Wanderer, in Writing Better Opinions: Communicating with Candor, Clarity, and Style, 54 Me. L. Rev. 47, 60 (2002), also explains that "[i]f the case on appeal is to be remanded, the appeals court should provide clear directions about what the trial court should do on remand. In this way, subsequent appeals may be avoided." Id. at 60. 11 No. 2004AP2655.ssa pleadings when "in the absence of a remand order in the mandate line," the circuit court "is given some other clear directive from the appellate court" (emphasis added). 67. Majority op., ¶¶2, The standard "some other clear directive" is not easy to apply and is susceptible to manipulation. ¶97 As I see it, this court in Tietsworth II did give the circuit court a clear directive. announced that the plaintiffs In Tietsworth II, the court have warranty and contract remedies for the alleged defects in their motorcycles and did not declare that these remedies were barred: As such, the plaintiffs have warranty remedies for the alleged defects in their motorcycles. In addition, there are contract remedies at law and in equity to the extent that the plaintiffs were fraudulently induced to purchase their motorcycles. A contract fraudulently induced is void or voidable; a party fraudulently induced to enter a contract may affirm the contract and seek damages for breach or pursue the equitable remedy of rescission and seek restitutionary damages . . . . The economic loss doctrine does not bar these contract remedies for fraudulently induced contracts. . . . Tietsworth II, 270 Wis. 2d 146, ¶36. ¶98 The court continued, stating that although the plaintiffs are barred from pursuing tort claims, they may have contract remedies: In short, we see no reason to recognize an exception to the economic loss doctrine to allow this consumer contract dispute to be remedied as an intentional misrepresentation tort. The economic loss doctrine bars the plaintiffs' common-law fraud claim. 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. 12 No. 2004AP2655.ssa Tietsworth II, 270 Wis. 2d 146, ¶37. ¶99 The majority opinion unpersuasively plays down the importance of these two lengthy paragraphs in Tietsworth II, in which the court explicitly declared that the plaintiffs have viable claims against Harley-Davidson grounded in contract and warranty.12 ¶100 The majority opinion asserts in a conclusory fashion that the Tietsworth II court was simply saying that the economic loss doctrine would not bar these plaintiffs may bring these claims. claims, not that Majority op., ¶47. the And how does the majority opinion divine that these two paragraphs do not give the plaintiffs the opportunity to bring their contract claims? By just saying that the two paragraphs "are fairly interpreted as this court's explanation of the application of the economic loss doctrine to fraud claims." That's the legal equivalent of a parent Majority op., ¶47. answering a child's query of "why" with a "because I said so." ¶101 I conclude that paragraphs 36 and 37 in Tietsworth II are just as easily and just as fairly interpreted as leaving open the opportunity for the plaintiffs to bring contract and warranty claims. The Tietsworth II court acknowledged that the 12 Specifically, the plaintiffs wanted to allege that Harley-Davidson fraudulently induced class members to purchase the motorcycles; that Harley-Davidson breached the express warranty that the motorcycles and engines were free from defects in factory materials and workmanship at the time of sale and for a period of 12 months thereafter; and that Harley-Davidson was unjustly enriched. The first two of these claims, warranty and contract, were explicitly recognized by this court, and the third claim, unjust enrichment, is a corollary of the plaintiffs' contract claims. 13 No. plaintiffs remedies" 2004AP2655.ssa "have warranty remedies" and "may claims (emphasis added). The Tietsworth have contract II court deliberately employed the present tense in these paragraphs, not the past tense, thus leaving open the possibility that the does not plaintiffs may pursue these claims in the future. ¶102 That the mandate line in Tietsworth II explicitly remand the cause to the circuit court for purpose of allowing the plaintiffs to amend the complaint does not dispel the significance of our language in paragraphs 36 and 37. That the court did not explicitly direct or order a remand or an amendment to the pleadings is not unexpected. The plaintiffs did not request a remand to amend the complaint. It is likewise inconsequential that the court did not provide, in the paragraphs preceding the mandate, instructions to the plaintiffs in regard to bringing these claims. The court does not usually give legal advice to the parties and does not ordinarily address amendments to the pleadings unless raised by the parties. ¶103 Under the circumstances of the Tietsworth II case, an appellate court would not necessarily order the plaintiffs to file an amended complaint asserting these additional theories of liability and would not likely provide explicit guidance in regard to amending the complaint, but it might and did leave open the possibility that the plaintiffs may take the initiative under Wis. Stat. §§ 808.08(3) and 802.09(1) to file an amended complaint. ¶104 If the majority opinion is looking for "some clear directive" that the amendment of the pleadings is permitted on 14 No. 2004AP2655.ssa remittitur, paragraphs 36 and 37 in Tietsworth II may be as clear a directive as the court could legitimately provide given the issue actually before the court and the procedural posture of the case. C. Majority Opinion Paragraph 32 and the Traditional Approach ¶105 Until instant case it was altered (although today retained by in the holding paragraph in 32), the the traditional pre-1978 rule was that a circuit court must comply with the appellate court's decision but has the authority to take further action in a case as long as the action is not inconsistent with the decision of the appellate court.13 The permissible case and did not amending the further actions pleadings, so included long as reopening the amendments conflict with the decision of the appellate court. 13 a Recognizing See, e.g., Fullerton Lumber Co. v. Torborg, 274 Wis. 478, 483-84, 80 N.W.2d 461 (1957). This rule was based in part on Wis. Stat. § 808.09 (and its predecessor statutes), which not only guides the actions an appellate court may take on appeal but also instructs that the circuit court must act in accordance with the appellate court's rulings on remittitur. Wisconsin Stat. § 808.09 provides that an appellate court may reverse, affirm, or modify the judgment or order; may order a new trial; or, if the appeal is from a part of the judgment or order, it may reverse, affirm, or modify that part of the judgment or order. Wisconsin Stat. § 808.09 then states in relevant part that "[i]n 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." Courts have interpreted the language "shall proceed in accordance with the judgment" as not limiting the circuit court's ability to take action, so long as the action is not inconsistent with the decision from the appellate court. See, e.g., Fullerton Lumber Co., 274 Wis. at 482-83 (citing Wis. Stat. § 274.35(1), the predecessor statute to Wis. Stat. § 808.09, for the proposition that the circuit court may act on matters "left open"). 15 No. 2004AP2655.ssa that this court is fallible and that not all circumstances are foreseen or foreseeable, this court adopted a rule that gave some flexibility to the circuit court after an appeal was decided. ¶106 Citing Fullerton Lumber Co. v. Torbord, 274 Wis. 478, 80 N.W.2d 461 (1957), this court has endorsed the pre-1978 view of a circuit court's powers in post-1978 cases, stating, "Where a mandate directs the entry of a particular judgment, it is the duty of the trial court to proceed as directed. may, however, determine any matters left The trial court open, and in the absence of specific directions, is generally vested with a legal discretion to take such action, not inconsistent with the order of the upper court, circumstances." Circuit Court Wis. 2d 428, as seems wise and proper under the State ex rel. J.H. Findorff & Son, Inc. v. for Milwaukee County, N.W.2d 679.14 608 The 2000 WI court 30, of ¶25, 233 appeals has similarly followed Fullerton, declaring that a circuit court is bound to covered follow only the some mandate issues in of the that court case) of but appeals "also (which has the authority to address any remaining unresolved issues, so long as it acts in a mandate." manner consistent with [the appellate court's] Harvest Sav. Bank v. ROI Invs., 228 Wis. 2d 733, 738, 598 N.W.2d 571 (Ct. App. 1999). 14 In Findorff, 233 Wis. 2d 428, ¶25 (citing Fullerton, 274 Wis. at 483), the court declared that the "traditional view [is] that a circuit court often has some discretion on remand to resolve matters not addressed by a mandate in a manner consistent with that mandate." 16 No. 2004AP2655.ssa ¶107 The majority opinion attempts to distinguish Findorff and Fullerton from Tietsworth II, stating that in the prior cases, in contrast with Tietsworth II, the mandate line remanded the cause to the circuit court. See majority op., ¶55. The Findorff court did not give weight to any difference in the Findorff and Fullerton mandates in vesting discretion with the circuit court. ¶108 In See Findorff, 233 Wis. 2d at 428, ¶25 n.16. Sutter v. State, 69 Wis. 2d 709, 717, 233 N.W.2d 391 (1975), a pre-1978 case, the mandate line stated, "Judgment reversed and cause remanded with directions to enter judgment not inconsistent with this opinion." plaintiffs in that case sought leave to amend their complaint. relief from On remand the the judgment and The Sutter court held against the plaintiffs, declaring, "The trial court has no authority to amend the pleadings after remittitur with the mandate of this court providing specific particular judgment."15 directions for the entry of a Nevertheless Sutter recognized this rule was not ironclad, stating: Generally, amendments are not permissible on remand where the case was determined on the merits. After final judgment has been rendered or directed on appeal, ordinarily the trial court has no power to allow the amendment of the pleadings . . . .16 ¶109 The key words in Sutter for purposes of the present case are "generally" and "ordinarily." The Sutter 15 court The Sutter court distinguished Fullerton Lumber on the ground that the Sutter mandate directed the entry of a particular judgment. It interpreted the mandate as not requiring further proceedings. Sutter, 69 Wis. 2d 717-18. 16 Id. at 717 (citations omitted) (emphasis added). 17 No. deliberately used these 2004AP2655.ssa "appellate-court-wiggle-room-words" twice to signal the reader that exceptions exist to the rule that amendments are not permissible when the appeal was determined on the merits.17 ¶110 Tietsworth II falls within the traditional rule and paragraph 32 of the majority opinion. the opportunity for warranty remedies. the plaintiffs The decision left open to pursue contract and The plaintiffs' pursuit of these contract claims is consistent with our reversal of the decision of the court of appeals and the circuit court's dismissal of the tort claims in the complaint. ¶111 Furthermore, although specifically left open the I conclude plaintiffs' that Tietsworth contract and II warranty claims, other members of the court disagree with me and with each other about what Tietsworth II means. opinions and the mandates cannot agree If we who write the about the meaning of Tietsworth II, it is perfectly understandable that the parties disagree and that the three members of the court of appeals disagree with the circuit court judge about the import of our decision. ¶112 Inasmuch as this substantial difference of opinion exists about Tietsworth II, should not this court err on the side of giving the plaintiffs their day in court? ¶113 I turn now to Wis. Stat. § 808.08(3). 17 See also State ex rel. Freeman Printing Co. v. Luebke, 36 Wis. 2d 298, 304, 152 N.W.2d 861 (1967) ("An appeal from a final judgment would normally remove the complete case from the trial court at the time the appeal was perfected.") (emphasis added). 18 No. 2004AP2655.ssa III ¶114 Wisconsin Stat. § 808.08 describes, according to the majority opinion at ¶33, what the circuit court must or may do upon receiving the remittitur pursuant to § 808.09. ¶115 Wisconsin Stat. § 808.08 provides in full as follows: Further proceedings in trial court. When the record and remittitur are received in the trial court: (1) If the trial judge is ordered to take specific action, the judge shall do so as soon as possible. (2) If a new trial is ordered, the trial court, upon receipt of the remitted record, shall place the matter on the trial calendar. (3) If action or proceedings other than those mentioned in sub. (1) or (2) is ordered, any party may, within one year after receipt of the remitted record by the clerk of the trial court, make appropriate motion for further proceedings. If further proceedings are not so initiated, the action shall be dismissed except that an extension of the one-year period may be granted, on notice, by the trial court, if the order for extension is entered during the one-year period. ¶116 The dispute between the parties centers on subsection (3) of Wis. Stat. § 808.08. Unlike Wis. Stat. § 808.08(1) and (2), which are addressed to the circuit court, § 808.08(3) is addressed to the parties. Subsection (3) preserves a party's ability to move the circuit court for "further proceedings." Subsection (3) instructs that a party may "make appropriate motion for further proceedings" within a year, or the action will be dismissed. The plaintiffs moved the circuit court pursuant to Wis. Stat. § 808.08(3) within a year for further proceedings. 19 No. 2004AP2655.ssa ¶117 Wisconsin Stat. § 808.08 has been in the statute books for many years with substantially the same language, although the statute has been renumbered several times. ¶118 Chapter 187, Laws of 1977 renumbered former Wis. Stat. § 817.36 (1975) as Wis. Stat. § 808.08, making only minor changes in the statutory language for clarification purposes.18 Former § 817.36 (1975) itself was formerly numbered Wis. Stat. § 274.36 (1971). See In the Matter of the Promulgation of the Rules of Civil Procedure for the State of Wisconsin, 67 Wis. 2d 585, 761 (1975).19 No change in statutory language was made.20 order By supreme court dated November 10, 1964 and effective March 1, 1965, former § 274.36 (1963) was repealed and recreated as § 274.36 (1965).21 18 Chapter 187, Laws of 1977; 1977 S.B. 1. The legislative note from the Legislative Reference Bureau that accompanies the 1977 change emphasizes that "[i]t contains no substantive change." Analysis by the Legislative Reference Bureau, 1977 S.B. 1, LRB-9037/1, in Bill Drafting File on 1977 S.B. 1, available at Wisconsin Legislative Reference Bureau, 1 East Main Street, Madison, Wisconsin. 19 This supreme court order was dated February 17, 1975 and took effect January 1, 1976, and adopted in part, substantially revised in part, and reorganized the rules governing civil procedure into a comprehensive structure known as the Wisconsin Rules of Civil Procedure. Former § 274.36 was incorporated wholesale into chapter 817. 20 An earlier Supreme Court Order, dated March 31, 1971 and effective July 1, 1971, made minor changes in the statutory language of former § 274.36, "to clear up an ambiguity in the present language." 50 Wis. 2d xvii. No substantive changes were effected. 21 1964 Supreme Court Order, 25 Wis. 2d vii (1964). An earlier version of the statute is found in Zeidler v. Goelzer, 191 Wis. 378, 388, 211 N.W. 140 (1926) as follows: 20 No. 2004AP2655.ssa ¶119 Although brief, my recitation of the lengthy history of Wis. Stat. dissent. § 808.08 is sufficient for purposes I want to make the following point: of this Section 808.08 has been on the books for a long time, but the key cases stating what I call the traditional rule of a circuit court's power after an appellate decision (see, e.g., Fullerton and Sutter) do not rest the traditional rule on the language of § 808.08 or its predecessor. If § 808.08 (or other numbered version of the statute) is mentioned in the cases, the citation is only in passing. These cases rely on Wis. Stat. § 808.09 or its predecessor statutes. ¶120 In contrast, the majority opinion appears to peg its holding about the circuit court's power to Wis. Stat. § 808.08, which the majority opinion characterizes as "plain." op., ¶36. The majority opinion states that Majority § 808.08(3) is triggered if and when the appellate court directs or commands or instructs the trial court to take "action" other than In every case in error or on appeal in which the Supreme Court shall order a new trial or further proceedings in the court below, the record shall be transmitted to such court and proceeding had thereon within one year from the date of such order in the Supreme Court, or in default thereof the action shall be dismissed, unless, upon good cause shown, the court shall otherwise order. It shall be the duty of the losing party in any action or proceeding when a judgment or order in his favor in the court below is reversed by the Supreme Court on the appeal of the opposing party to pay the clerk's fees on such reversal, procure the record in said cause to be remitted to the trial court and bring the cause to trial within one year after such reversal, unless the same be continued for cause, and if he fail so to do, his action shall be dismissed. 21 the No. 2004AP2655.ssa "specific action" or new trial described in subsections (1) and (2), and gives examples at paragraph 41. ¶121 Although it Stat. § 808.08(3), bases the its majority reasoning fails interpretation of this statute. to primarily engage in on a Wis. proper The court wrestled with the meaning of § 808.08(3) in State ex rel. J.H. Findorff & Son v. Circuit Court for Milwaukee County, 233 Wis. 2d 428, 608 N.W.2d 679 (1999), while interpreting and applying §§ 808.08 and 801.58(1). ¶122 As acknowledged by the majority opinion, the Findorff court drew a distinction between "specific action" and "further proceedings," in respectively. Majority op., ¶37. action" in ministerial refers to subsections subsection duty any and re Commitment and (3) to a proceedings" in of which the circuit in Thiel, 2004 WI circuit App court's subsection court Findorff, 233 Wis. 2d at 442-43. of § 808.08 It concluded that "specific refers "further proceeding exercise discretion. In (1) (1) 140, (3) will See also ¶27, 275 Wis. 2d 421, 685 N.W.2d 890 (viewing § 808.08(3) as applying by default when acknowledging neither this subsection court's (1) narrow nor (2) definition applies and of "specific recitation of action" in § 808.08(1)). ¶123 According mandate does not § 808.08(1) or (3). a careful to tell Findorff, us the whether the mere mandate falls a within Under Findorff, this determination requires examination of each case to determine whether the circuit court will perform a ministerial duty or a discretionary 22 No. act. Findorff, 233 Wis. 2d at 448-49. does not engage in the careful 2004AP2655.ssa The majority opinion analysis of ministerial and errs in its application that discretionary duties as required by Findorff. ¶124 Moreover, interpretation of the majority Findorff, opinion resulting in chokes all meaning out of § 808.08(3). an As I see it, to give subsection (3) meaning, that is, for it not to be superfluous, it must be interpreted to allow the parties to move for further proceedings in the circuit court when a circuit court is not required by subsections (1) and (2) to act upon its own, that is, when an appellate court does not order or direct or give instructions about specific actions (subsection (1)) or a new trial (subsection (2)). In other words, subsection (3) is triggered when the mandate does not fall within subsections (1) or (2). What else can subsection (3) mean? ¶125 Subsection (3) must be read harmoniously with the authority supplied to the circuit court pursuant to Wis. Stat. § 808.09. Subsection (3) thus encompasses cases that fall under the traditional rule, namely that a circuit court must comply with the appellate court's decision but has the authority to take further action in a case as long as the action is not inconsistent with the decision of the appellate court. Subsection (3) allows parties to petition the circuit court to take these commanded decision. discretionary by the mandate actions but are that not are not inconsistent explicitly with the How else would the parties be able to implement the traditional rule embodied in § 808.09? 23 No. ¶126 The majority opinion expresses great 2004AP2655.ssa horror at the court of appeals decision in the instant case, exclaiming that "the court of appeals turned Tietsworth II into little more than an advisory opinion." Majority op., ¶40. Wrong! Tietsworth II remains the definitive decision in regards to the plaintiffs' tort claims. initial The circuit court cannot undo or undermine the judgment claims. and certainly cannot revive those dismissed The circuit court, however, retains authority, within its discretion, to permit the plaintiffs to bring the contract and warranty remedies recognized by the Tietsworth II court. This is not a power "'to set at naught the judgments of this court.'" Majority op., ¶40 (quoted source omitted). ¶127 Underlying much of the majority opinion's interpretation of Tietsworth II and Wis. Stat. § 808.08 is the public policy of finality. I agree that finality is important. Indeed the legislature expressly embraced finality in Wis. Stat. § 808.08(3): A party must bring proceedings under § 808.08(3) within one year or be forever barred. The court should follow the legislative directive. ¶128 It is clearly desirable that litigation come to an end. But it is also clearly desirable in the present case that the doors of the courthouse be open to consumers, the purchasers of the motorcycles at issue, who (in the very words of this court) have valid contract and warranty claims that have not been barred determine explicitly. the point § 808.08(3) of explicitly The majority finality upon provides a 24 opinion remand point of when should not Wis. Stat. finality: This No. statute permits a party to move consistent with the appellate further for opinion 2004AP2655.ssa proceedings within one year. The plaintiffs in the present case met this deadline. ¶129 Furthermore, despite this case's lengthy procedural history, the plaintiffs have not yet had their fabled "day in court." The plaintiffs have never had the opportunity to present the consumer complaints to a judge or a jury. ¶130 That the majority opinion denies the plaintiffs their day in court on the merits of their claims conflicts with basic concepts of justice and the clear policy of modern law favoring access to the courts and adjudication of cases on their merits.22 ¶131 After examining Tietsworth II, the traditional rule about a circuit court's power after an appellate decision, Wis. Stat. § 808.08, and the public policy of finality, I conclude that the circuit court has the authority, pursuant to § 808.08(3) and paragraphs 36 and 37 of Tietsworth II, to reopen the plaintiffs' case to consider amending the pleadings. IV ¶132 Under Wis. Stat. § 802.09(1), a party may seek leave of the circuit court at any stage of the proceedings, including after judgment, freely given at to amend any the stage pleadings of the "and action leave when shall be justice so requires" (emphasis added).23 22 See, e.g., Gaddis v. La Crosse Products, Inc., 198 Wis. 2d 396, 407, 542 N.W.2d 454 (1996); Schlumpf v. Yellick, 94 Wis. 2d 504, 511, 288 N.W.2d 834 (1980). 23 Wisconsin Stat. § 802.09 provides in relevant part: 25 No. 2004AP2655.ssa (1) Amendments. A party may amend the party's pleading once as a matter of course at any time within 6 months after the summons and complaint are filed or within the time set in a scheduling order under s. 802.10. Otherwise a party may amend the pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given at any stage of the action when justice so requires. A party shall plead in response to an amended pleading within 45 days after service of the amended pleading, or within 20 days after the service if the proceeding is to foreclose or otherwise enforce a lien or security interest, unless (a) the court otherwise orders or (b) no responsive pleading is required or permitted under s. 802.01(1). (2) Amendments to conform to the evidence. If issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure to so amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice such party in maintaining the action or defense upon the merits. The court may grant a continuance to enable the objecting party to meet such evidence. (3) Relation back of amendments. If the claim asserted in the amended pleading arose of the transaction, occurrence, or event set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the filing of the original pleading. An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by law for commencing the action against such party, the party to be brought in by amendment has received such notice of the institution of the action that he or she will not be prejudiced in 26 No. ¶133 Because the majority opinion 2004AP2655.ssa concludes that the circuit court did not have authority to reopen the case for purposes of amendment of the complaint, its discussion of Wis. Stat. § 802.09 is unnecessary and irrelevant. ¶134 Because I conclude that the circuit court has power under Tietsworth II and Wis. Stat. § 808.08(3) to reopen the case, I reach the question of the circuit court's power under Wis. Stat. § 802.09(1) to grant the plaintiffs leave to amend their complaint. ¶135 In Mach v. Allison, 2003 WI App 11, 259 Wis. 2d 686, 656 N.W.2d 766, the court of appeals concluded that the words "at any stage of the action" in the present statute mean exactly what they say, previous statute's application to amendments "before or after judgment." Mach, 259 Wis. 2d 686, ¶23. having retained the Mach held that "the statement . . . that a trial court may grant a motion to amend, either before or after judgment, is still a correct statement of the law. . . . [W]hether the amendment is before or after judgment does have a bearing Wis. 2d 686, ¶24. on what justice requires." Mach, 259 According to Mach, the timing of the motion and the reason for not bringing it sooner are relevant factors for a circuit court to consider in determining what justice requires. maintaining a defense on the merits, and knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against such party. 27 No. ¶136 Because the circuit discretion under Wis. Stat. court § 809.02 did in not the 2004AP2655.ssa exercise present its case, I would remand the cause to the circuit court to exercise its discretion. I disagree with the court of appeals, which permitted the amendment of the pleading 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 cause to the circuit court to apply Mach in exercising its discretion. ¶138 For the reasons set forth, I conclude that the circuit court and majority opinion have erred as a matter of law in declaring that the circuit court in the present case does not have power to reopen the case for amendment of the pleadings. I therefore dissent. ¶139 I am authorized to state that Justices BRADLEY and N. PATRICK CROOKS join this opinion. 28 ANN WALSH No. 1 2004AP2655.ssa

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