Wisconsin Court of Appeals rules party can amend pleadings mid-trial.

• Date: 27 July 2009
• Author: Ziemer, David

Byline: David Ziemer

A property owner was properly allowed to amend the pleadings midtrial to add a claim for a forced sale --- an award of land for its fair market value.

The July 16 holding by the Wisconsin Court of Appeals held that mere undue delay in asserting the claim was not prejudicial to the neighboring property owner.

Denise Zurawski unwittingly built permanent improvements on property that she did not own, but which was adjacent to hers.

Robert and Terese Soma later bought the adjacent land, knowing of the encroachments. After a falling out between Zurawski and the Somas, the Somas brought suit for possession against her.

Zurawski filed an answer pleading adverse possession and laches as defenses, but did not add a counterclaim seeking a forced sale -- an award of the encroached land at fair market value.

Two years after suit was filed, the case went to trial, during which, Zurawski argued that the equities justified awarding her a forced sale. She sought to introduce evidence on the equities of the matter and to prove the value of the encroached land.

The Somas objected, but the court permitted Zurawski to amend her pleadings. The court offered the Somas an adjournment, but the Somas rejected the offer.

The court ordered a force of the land to Zurawski for $10,000. The Somas appealed, but the Court of Appeals affirmed in an opinion by Judge Paul G. Lundsten.

Implicit Authority

The court first held that the circuit court had implicit authority to award the forced sale.

Section 843.10 explicitly grants authority for forced sales only under specified circumstances. However, in Perpignani v. Vonasek, 139 Wis.2d 695, 408 N.W.2d...