02-1881 CTI of Northeast Wisconsin, LLC v. Herrell

By: dmc-admin//December 23, 2002//

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“We conclude that § 802.06(2)(b) requires the court to notify parties of its intent to convert a motion to dismiss for failure to state a claim to one for summary judgment…. . When treating the motion as one for summary judgment, the court shall give all parties ‘reasonable opportunity to present all material made pertinent to such a motion by s. 802.08.’…

“The trial court did not err by making a conversion; it erred by failing to notify the parties it intended to do so. The failure to notify the parties deprived them, particularly CTI, of their due process right to submit material relevant to a summary judgment motion under Wis. Stat. § 802.08. Accordingly, we reverse the summary judgment and order.”

Reversed and remanded with directions.

Recommended for publication in the official reports.

Dist III, Brown County, Bischel, J., Hoover, P.J.

Attorneys:

For Appellant: R. George Burnett, Green Bay; Sara E. Ramaker, Green Bay

For Respondent: J. Steven Heil, Berlin

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