Plaintiff can't assert new claims, rules Wisconsin Supreme Court.

• Date: 23 July 2007

Byline: David Ziemer

Unless the remand order provides a clear directive, a circuit court has no authority to reopen a case, after the appellate court affirmed its dismissal, the Wisconsin Supreme Court held on July 12. In 2001, Steven C. Tietsworth filed a proposed nationwide class action against Harley-Davidson, Inc., alleging problems with the design, manufacture, and sale of a particular model of motorcycle. Tietsworth's causes of action included: (1) a violation of sec. 100.18 (the "Decep-tive Trade Practices Act" or "DTPA"); (2) negligence; (3) strict products liability; and (4) common-law fraudulent concealment. Tietsworth did not allege breach of contract or any warranty claims. The trial court dismissed the action, but the court of appeals reversed. Tietsworth v. Harley-Davidson, Inc., 2003 WI App 75, 261 Wis. 2d 755, 661 N.W.2d 450 (Tiets-worth I). The Supreme Court granted review, and reversed the court of appeals, holding that the economic loss doctrine bars the tort claims. The court wrote, "The plaintiffs may have contract remedies -- breach of contract/warranty or rescission and restitution -- but may not pursue a tort claim for misrepresentation premised on having purchased allegedly defective motorcycles." Tietsworth v. Harley-Davidson, Inc., 2004 WI 32, par. 37, 270 Wis. 2d 146, 677 N.W.2d 233 (Tietsworth II). Upon remittitur to the circuit court, Tietsworth moved the trial court to reopen the matter pursuant to sec. 808.08(3), and for leave to amend the complaint pursuant to sec. 802.09, in order to pursue contract and warranty remedies. The circuit court denied the motion, and dismissed the complaint. Tietsworth appealed, and the court of appeals reversed, holding that the trial court could reopen the case allow an amended complaint. Tietsworth v. Harley-Davidson, Inc., 2006 WI App 5, 288 Wis.2d 680, 709 N.W.2d 901 (Tietsworth III). The Supreme Court again accepted review, and reversed the court of appeals, in a decision by Justice David T. Prosser, Jr. Chief Justice Shirley S. Abrahamson dissented, in an opinion joined by Justices Ann Walsh Bradley and N. Patrick Crooks. The majority noted that, either the court of appeals or the Supreme Court could have directed the circuit court to grant leave to amend the complaint. Instead, the majority concluded that, when Tietsworth II was decided, the decision became the law of the case, and without a clear directive, no lower court could grant leave to amend the complaint...