Plaintiff can't assert new claims

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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.

Section 808.09 provides in relevant part, “In 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.”

The court concluded that while a circuit court must carry out the mandate, and may, without explicit direction, address collateral matters left open, such as costs, “there can be no amendments in the trial court that conflict with the expressed or implied mandate of the appellate court.”

The court also concluded that the trial court had no authority to permit amendment of the pleadings pursuant to sec. 808.08(3), because it is limited to cases in which the appellate court orders “action or proceedings.”

The court cited numerous remand orders from other cases in which the case “is remanded to the circuit court for further proceedings consistent with this opinion (or similar language),” and observed, “our mandate line in Tietsworth II read nothing like the mandate line in [those cases].”

Instead, it read only, “The decision of the Court of Appeals is reversed.” Tiets-worth II, 270 Wis.2d at 172.

The court concluded, “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. There is no reference to a remand.”

Further, the court noted that, pursuant to Rule 809.14, parties may move the appellate court to clarify the effect of a mandate, if it is ambiguous, but the plaintiff did not do so in this case.

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The court set forth the following general rule: “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 trial court whose judgment or final order has been affirmed by the appellate court on the merits has no authority to reopen the case for an amended complaint.”

Before concluding, the court looked to policy interests, and concluded its decision furthers the interests of finality, fairness and efficiency.

In this case, the court found that plaintiffs’ counsel made a deliberate choice to seek tort claims, rather than contract claims, because of the ability to obtain punitive damages in tort, and now must accept the consequences of that choice.

Accordingly, the court reversed.

Justice Abrahamson dissented, concluding, “Clear, easy-to-apply rules that are not manipulable are valuable. The majority opinion’s new rule, however, is not easy to apply, is susceptible to manipulation, and creates tensions and inconsistencies with past precedent.”

Stating, “the mandate line is not dispositive of the power of the circuit court after review; the decision is,” the dissent noted that nothing in Tietsworth II explicitly states that the Supreme Court was affirming the dismissal of the complaint.

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David Ziemer can be reached by email.