Wis. Stat. § 802.07

Current through Acts 2023-2024, ch. 272

Section 802.07 - Counterclaim and cross claim

(1) COUNTERCLAIM. A defendant may counterclaim any claim which the defendant has against a plaintiff, upon which a judgment may be had in the action. A counterclaim may or may not diminish or defeat the recovery sought by the opposing party. Except as prohibited by s. 802.02(1m) , the counterclaim may claim relief exceeding in amount or different in kind from that sought in the pleading of the opposing party.

(2) COUNTERCLAIM MATURING OR ACQUIRED AFTER PLEADING. A claim which either matured or was acquired by the pleader after serving the pleading may, with the permission of the court, be presented as a counterclaim by supplemental pleading.

(3) CROSS CLAIM. A pleading may state as a cross claim any claim by one party against a coparty if the cross claim is based on the same transaction, occurrence, or series of transactions or occurrences as is the claim in the original action or as is a counterclaim therein, or if the cross claim relates to any property that is involved in the original action. Except as prohibited by s. 802.02(1m) , the cross claim may include a claim that the party against whom it is asserted is or may be liable to the cross claimant for all or part of a claim asserted in the action against the cross claimant.

(4) JOINDER OF ADDITIONAL PARTIES. Persons other than those made parties to the original action may be made parties to a counterclaim or cross claim in accordance with ss. 803.03 to 803.05 .

(5) SEPARATE TRIALS; SEPARATE JUDGMENTS. If the court orders separate trials as provided in s. 805.05(2) , judgment on a counterclaim or cross claim may be rendered in accordance with s. 806.01(2) when the court has jurisdiction so to do, even if the claims of the opposing party have been dismissed or otherwise disposed of.

Wis. Stat. § 802.07

Sup. Ct. Order, 67 Wis. 2d 585, 628 (1975); 1975 c. 218; Sup. Ct. Order, 104 Wis. 2d xi; 1987 a. 256; 2007 a. 97.

Section 806.02(2) provides that the plaintiff may move for default judgment according to the demand of the complaint. This section gives no indication that the appellations "plaintiff" and "defendant" may be reversed for purposes of a counterclaim. Pollack v. Calimag, 157 Wis. 2d 222, 458 N.W.2d 591 (Ct. App. 1990). A defendant may not join opposing counsel in counterclaims, but claims may be asserted against counsel after the principal action is completed. Badger Cab Co. v. Soule, 171 Wis. 2d 754, 492 N.W.2d 375 (Ct. App. 1992). This section does not contain mandatory counterclaim language but, res judicata bars claims arising from a single transaction that was the subject of a prior action and could have been raised by a counterclaim in the prior action if the action would nullify the initial judgment or impair rights established in the initial action. A.B.C.G. Enterprises v. First Bank Southeast, 184 Wis. 2d 465, 515 N.W.2d 904 (1994). When collateral estoppel compels raising a counterclaim in an equitable action, that compulsion does not result in the waiver of the right to a jury trial. Norwest Bank v. Plourde, 185 Wis. 2d 377, 518 N.W.2d 265 (Ct. App. 1994). In an automobile injury action by an injured party naming the driver of the other car and the injured party's own insurance company as defendants, the court was not competent to proceed on a default judgment motion by the insurer against the other defendant when the insurer had filed an answer, but no cross claim against the other defendant. A default judgment entered in favor of the insurer was void. Tridle v. Horn, 2002 WI App 215, 257 Wis. 2d. 529, 652 N.W.2d 418, 01-3372. Cross-claims are generally permissive in Wisconsin. Wisconsin Public Service Corp. v. Arby Construction, 2011 WI App 65, 333 Wis. 2d 184, 798 N.W.2d 715, 10-0878. The general rule in Wisconsin is that when a defendant may interpose a counterclaim but fails to do so, the defendant is not precluded from maintaining a subsequent action on that claim. A.B.C.G. Enterprises, 184 Wis. 2d 465 (1994), established a narrow, common law exception to the permissive counterclaim rule as a means of reconciling the tension between that rule and claim preclusion. A counterclaim is compulsory only if claim preclusion would otherwise apply and a favorable judgment in the second action would nullify the judgment in the original action or impair rights established in the initial action. Hull v. Glewwe, 2019 WI App 27, 388 Wis. 2d 90, 931 N.W.2d 266, 17-2485. But see Teske v. Wilson Mutual Insurance Co., 2019 WI 62, 387 Wis. 2d 213, 928 N.W.2d 555, 17-1269. When a defendant obtains judgment on a counterclaim, the judgment extinguishes the defendant's right to recover on other counterclaims arising from the same transaction. Bankruptcy Estate of Lake Geneva Sugar Shack, Inc. v. General Star Indemnity, (1999). Landing in A.B.C.G.. Soup: The Compulsory Counterclaim Trap. Bach. Wis. Law. Mar. 2006.