Amended complaint must be answered, rules Wisconsin Court of Appeals.

• Date: 01 October 2007
• Author: Ziemer, David

Byline: David Ziemer

If a defendant does not respond to an amended complaint, default judgment can be entered, even though he did answer the original complaint, the Wisconsin Court of Appeals held on Sept. 25. On Apr. 7, 2005, Jack and Diana Schuett filed a summons and complaint against Richard L. Hanson, Jr., alleging misrepresentations in a real estate transaction. On Oct. 6, 2005, the Schuetts served an amended complaint upon Hanson and mailed it to the court for filing, which occurred on Oct. 11. Although Hanson had answered the original complaint, he failed to answer the amended complaint. Several months later, the Schuetts moved for a default judgment based upon Hanson's failure to answer the amended complaint. Hanson opposed the motion, arguing a default judgment could not be rendered because he joined issue by answering the original complaint. He also moved to strike the amended complaint, contending it was untimely, and requested time to answer, asserting his failure to timely do so was the result of excusable neglect. Iron County Circuit Court Judge Patrick J. Madden rejected Hanson's arguments and granted the default judgment. Hanson appealed, but the court of appeals affirmed, in a decision by Judge Edward R. Brunner. The court first held that the amended complaint was timely under sec. 802.09(1). The statute provides that a party may amend a pleading once as a matter of course at any time within six months after the summons and complaint are filed, or within the time set in a scheduling order. After that, the party must seek leave of the court or consent of the adverse party. Reading the statute in conjunction with sec. 801.14(4), the court concluded that the amended complaint is amended when served. Under that statute, a party must file with the court, "within a reasonable time after service," any papers required to be served upon a party. The court concluded that amended pleadings are necessarily amended when served, because the statutes contemplate that service occurs first, followed by filing within a vague "reasonable time." As a result, the amended complaint was filed within six months and the Schuetts did not require leave of the court to file it. The court next held that Hanson failed to properly join the issues when he failed to file an amended answer, and default judgment could be granted. Citing Holman v. Family Health Plan, 227 Wis.2d 478, 487, 596 N.W.2d 358 (1999), which held that, when an amended complaint makes...