2009AP2610 Eau Claire County v. Softscape Inc.

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Civil Procedure
Statute of limitations; relation back statute

This appeal presents a “new claim” relation-back issue under Wis. Stat. § 802.09(3) (2009-10). The question is whether a claim made for the first time in an amended complaint filed after expiration of the applicable statute of limitations period relates back to factual allegations made in an earlier complaint that was filed within the limitations period. If so, the new claim in the later filed complaint is deemed to have been filed within the limitations period only when the earlier complaint contained sufficient notice of potential claims.

Eau Claire County (the County) initially sued Softscape, Inc., on contract claims only, and then filed a series of amended complaints. The County’s Third Amended Complaint alleged, for the first time, a claim of fraudulent advertising in violation of Wis. Stat. § 100.18. The Third Amended Complaint was filed after the three-year statute of limitations period had lapsed. The circuit court concluded that the Third Amended Complaint did not relate back to allegations contained in the original complaint. As result of the court’s relation-back decision, the court determined that the County is not entitled to recover statutory fees and costs on its § 100.18 claim, on which the County had prevailed in a jury trial.

We conclude that our standard of review on this issue is de novo, because the trial court did not grant Softscape’s motion on the grounds that the amended complaint was untimely. Instead, the court granted the motion on the basis of a legal determination that in order for the Wis. Stat. § 100.18 claim in the amended complaint to relate back to the original complaint, the County needed to have alleged in its original complaint specific misrepresentations inducing the County to enter into a contract. We conclude that the circuit court erred, because the original complaint need only allege a “transaction, occurrence, or event” out of which the § 100.18 claim “arose,” and the County made such an allegation in its original complaint. Not recommended for publication in the official reports.

2009AP2610 Eau Claire County v. Softscape Inc.

Dist III, Eau Claire County, Proctor, J., Blanchard, J.

Attorneys: For Appellant: Ryberg, J. Drew, Eau Claire; Happe, Michael J., Eau Claire; For Respondent: Shull, John R., Jr., Wausau

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