Please ensure Javascript is enabled for purposes of website accessibility

2010AP552 Marquez v. Herbeck

By: WISCONSIN LAW JOURNAL STAFF//September 1, 2011//

2010AP552 Marquez v. Herbeck

By: WISCONSIN LAW JOURNAL STAFF//September 1, 2011//

Listen to this article

Civil Procedure
Amendment of pleadings

This is a contract and negligence action filed by homeowners Joel and Kris Marquez against contractor Don Herbeck. The parties entered into a contract requiring Herbeck to “abandon,” that is, to properly fill and cap, an existing potable water well on the Marquezes’ property, and then drill a new well for the Marquezes. After a trial to the court, the court determined that Herbeck breached the construction contract by failing to complete the well project in a timely fashion, entitling the Marquezes to an offset against what they owed Herbeck for his work. The court also decided that the well that Herbeck eventually drilled was adequate and suitable. In response to post-trial motions from the Marquezes, the court determined that they are not entitled to amend their pleadings to conform to evidence of two previously unpleaded causes of action: a violation of Wis. Admin. Code § ATCP 110 (June 2011) (the home improvement code), and slander of title.

On appeal, the Marquezes argue that the court erred in denying their motion to amend the pleadings after trial to conform with the evidence. We apply Hess v. Fernandez, 2005 WI 19, 278 Wis. 2d 283, 692 N.W.2d 655, to conclude that neither amendment is appropriate under the circumstances presented in this case, because Herbeck lacked actual notice that either claim was being raised during trial, and the Marquezes forfeited their opportunity to request the circuit court to allow either proposed amendment in the “interests of justice.”

Separately, the Marquezes purport to raise an additional argument, to the effect that this court should determine that they owe Herbeck nothing, because the Marquezes withdrew their authorization for the project before Herbeck performed any work. We conclude that this argument is too undeveloped for us to consider it.

Accordingly, we affirm the circuit court on each of these issues. Not recommended for publication in the official reports.

2010AP552 Marquez v. Herbeck

Dist IV, Vernon County, Rosborough, J., Blanchard, J.

Attorneys: For Appellant: Sipsma, Kenneth R., Madison; For Respondent: Graettinger, John A., Milwaukee

Full Text

Polls

Should Steven Avery be granted a new evidentiary hearing?

View Results

Loading ... Loading ...

Legal News

See All Legal News

WLJ People

Sea all WLJ People

Opinion Digests