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Civil Procedure — relation back doctrine

By: WISCONSIN LAW JOURNAL STAFF//November 23, 2011//

Civil Procedure — relation back doctrine

By: WISCONSIN LAW JOURNAL STAFF//November 23, 2011//

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Civil Procedure — relation back doctrine

A complaint against the owner of a business but not the property owner does not relate back to the property owner.
“In the case before us, the parties agree that the first and second prongs of the relation-back test have been met; thus, the sole issue on appeal is whether M.M.N. knew, or should have known that, but for a mistake concerning its identity, Wiley would have brought her action against it. See id.; WIS. STAT. § 802.09(3). Wiley argues that M.M.N. should have known that, but for that mistake, it would have been added as a defendant. She further claims that she was mistaken about M.M.N.’s identity because she did not learn that M.M.N. was the ‘true owner’ of the building until a year after the statute of limitations had expired. We disagree. M.M.N. should not have expected to be added as a defendant in this case because M.M.N. is merely the building owner; it has no role in owning, operating, or managing the business of Skateland; and Wiley’s original complaint asserts no claim against any owner or alleged owner of the building. For this same reason, we cannot conclude that Wiley made a ‘mistake’ with respect to the relation-back inquiry as she was, as of July 2008, apprised of the fact that the owner, operator and manager of the Skateland business was a separate entity from the party who owned the building in which the business was housed.”

Affirmed.

Recommended for publication in the official reports.

2010AP2789 Wiley v. M.M.N. Laufer Family Limited Partnership

Dist. I, Milwaukee County, Pocan, J., Curley, J.

Attorneys: For Appellant: Banks, Emile H., Jr., Milwaukee; Rivecca, Brenda M.S., Milwaukee; For Respondent: Mathie, James J., Waukesha

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