COURT OF APPEALS DECISION DATED AND RELEASED July 5, 1995 |
NOTICE |
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 94-2610
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
ROSA J. VASQUEZ,
Plaintiff-Appellant,
v.
WILLIE HENDERSON and
GERMANTOWN MUTUAL
INSURANCE COMPANY,
A DOMESTIC INSURANCE
CORPORATION,
Defendants-Respondents.
APPEAL from a judgment
of the circuit court for Milwaukee County:
WILLIAM J. HAESE, Judge. Affirmed.
Before Wedemeyer, P.J.,
Sullivan and Schudson, JJ.
PER CURIAM. Rosa J. Vasquez appeals from a judgment
dismissing her complaint, which pled only a common law negligence theory
alleging that Willie Henderson's dog bit her causing severe injuries. Vasquez claims that the trial court erred by
dismissing her claim at the close of her case-in-chief because, even though she
had not proven common law negligence, the evidence supported a claim under the
strict liability doctrine codified at § 174.02, Stats. Accordingly,
Vasquez argues that the trial court erroneously exercised its discretion in
denying her motion to amend the complaint to add the strict liability
claim. Because the trial court did not
erroneously exercise its discretion, we affirm.
I. BACKGROUND
Vasquez alleged that she
received injuries as a result of a dog bite, which occurred on February 20,
1992, at Henderson's home. Although
Henderson was not home at the time of the incident, Vasquez came to his home to
pick up Henderson's girlfriend, Yvonne Trevino, for a birthday dinner. Vasquez entered the fenced-in yard by
opening the gate. As she was knocking
on the windows and door, she was allegedly attacked by the dog, which was in
the fenced-in portion of the yard.
Vasquez filed suit,
alleging a common law theory of negligence.
The complaint did not reference a strict liability theory or
§ 174.02, Stats. The case was tried to the court because
Vasquez failed to timely pay the jury fee.
In her case-in-chief, Vasquez was the only witness, as no other
witnesses were named in accordance with the scheduling order. At the close of her case-in-chief, Henderson
moved to dismiss. Vasquez, through her
attorney, admitted that they had not proven that Henderson was negligent. Vasquez moved the court to amend her
complaint to add a claim of strict liability.
The trial court denied
the motion to amend the complaint and granted the motion to dismiss. Vasquez now appeals.
II. DISCUSSION
Vasquez does not dispute
that she failed to prove common law negligence. Hence, unless the trial court allowed her to amend her complaint
to add a claim for strict liability, dismissal was appropriate. The pivotal question, therefore, is whether
the trial court erroneously exercised its discretion in refusing to allow the
amendment.
A trial court properly
exercises its discretion if it applies the proper law to the relevant facts and
reaches a reasonable conclusion. Village
of Shorewood v. Steinberg, 174 Wis.2d 191, 204, 496 N.W.2d 57, 62
(1993). Our review of the record
reveals that the trial court did not erroneously exercise its discretion.
Section 802.09, Stats., sets forth the law governing
amendments to the pleadings. This
statute provides in pertinent part:
(1) Amendments. A party may
amend the party's pleading once as a matter of course at any time within 6
months after the summons and complaint are filed or within the time set in a
scheduling order under s. 802.10.
Otherwise a party may amend the pleading only by leave of court or by written
consent of the adverse party; and leave shall be freely given at any stage of
the action when justice so requires.
(2) Amendments to conform to the evidence. If
issues not raised by the pleadings are tried by express or implied consent of
the parties, they shall be treated in all respects as if they had been raised
in the pleadings. Such amendment of the
pleadings as may be necessary to cause them to conform to the evidence and to
raise these issues may be made upon motion of any party at any time, even after
judgment; but failure to so amend does not affect the result of the trial of
these issues. If evidence is objected
to at the trial on the ground that it is not within the issues made by the
pleadings, the court may allow the pleadings to be amended and shall do so
freely when the presentation of the merits of the action will be subserved
thereby and the objecting party fails to satisfy the court that the admission
of such evidence would prejudice such party in maintaining the action or
defense upon the merits.
As the trial court
properly explained, neither subsection requires an amendment under the facts
presented in the instant case.
Subsection (1) provides that amendment should be allowed “when justice
so requires.” After examining the
relevant facts, however, the trial court reasoned that justice did not require
it to grant the motion to amend.
Vasquez had ample time to amend her complaint as a matter of
right—within six months of filing suit or within the time set forth by the
scheduling order. She did not. Further, on the date of the trial,
Henderson's counsel clearly stated that this case involved solely a common law
negligence allegation and was not premised on a strict liability
theory. Vasquez did not object to,
clarify, or respond to that representation.
Accordingly, she waived her right to claim otherwise on appeal. See State v. Fawcett,
145 Wis.2d 244, 256, 426 N.W.2d 91, 96 (Ct. App. 1988) (failure to object at
trial in general waives any possible objection for purposes of appeal).
Subsection (2) of the
amendment statute allows for “freely amending the pleadings to conform to the
evidence.” However, this applies only
where the opposing party allows the non-pled theory to be tried, either
expressly or impliedly. Clearly,
Henderson did not expressly or impliedly concede to a trial involving a strict
liability theory. His representation at
the beginning of trial, referenced above, demonstrated his objection to a trial
on anything but the common law negligence theory.
Moreover, the trial
court examined the prejudice that would result to Henderson should the motion
to amend be granted. It concluded that
granting the motion to amend “would place a great injustice upon the
defendant.” The trial court's reasoning
demonstrates a rational process.
Vasquez did not provide any notice in her pleadings that she intended to
proceed on a strict liability theory.
Vasquez acquiesced on the record that this case involved only a common
law negligence claim and not a strict liability claim. It was not until her common law negligence
claim was foreclosed, due to her failure to prove that Henderson was negligent,
that she raised the strict liability issue.
Under these circumstances, prejudice to Henderson is undeniable.
Based on the foregoing,
we cannot conclude that the trial court's determination was an erroneous
exercise of discretion. The trial court
examined the relevant facts, applied the proper law, and reached a reasonable
conclusion.
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.