William and Elaine Honeyager and WED Development, LLC, sued the City of New Berlin for breach of the duty of good faith in a development agreement. On the morning of trial, at the City’s request, the trial court effectively changed the Honeyagers’ claim from one of breach to one of property overassessment. Having changed the claim for relief, the court then dismissed the action on the grounds that the Honeyagers had not used the proper statutory procedure for making an overassessment claim. But the law only allows trial courts to amend the parties’ pleadings to conform to the evidence under Wis. Stat. § 802.09(2) (2009-10). Here, no evidence was taken. Rather, the court amended the Honeyagers’ pleadings without their consent, at the behest of the City, and then only because it considered part of the Honeyagers’ trial brief in support of the breach of contract claim to be similar to an argument often made during an assessment review. The trial court had no authority to do what it did. We reverse. Not recommended for publication in the official reports.
2010AP1227 Honeyager, et al. v. City of New Berlin
Dist II, Waukesha County, Ramirez, J., Brown, C.J.
Attorneys: For Appellant: Stevens, Daniel W., Brookfield; Kuss, Rudolph J., Brookfield; For Respondent: Blum, Mark G., Waukesha; Schmitzer, Thomas G., Waukesha