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AUTUMN GROVE JOINT VENTURE v. RACHLIN

No. 85-1633

138 Wis.2d 273 (1987)

405 N.W.2d 759

AUTUMN GROVE JOINT VENTURE, Plaintiff-Appellant, v. Joel RACHLIN, Dana's Deli, Inc. and Randall S. Kurtz, Defendants-Respondents.

Court of Appeals of Wisconsin.

Decided March 25, 1987.

Attorney(s) appearing for the Case

For the plaintiff-appellant there were briefs and oral argument by David J. Cannon of Michael, Best & Friedrich of Milwaukee.

For the defendant-respondent there was a brief and oral argument by William H. Vettel of Milwaukee.

Before Scott, C.J., Brown, P.J., and Nettesheim, J.

SCOTT, C.J.

This is a case where a counterclaim alleged tort and requested punitive damages. The trial court persuaded the claimant to change the allegation to one of breach of contract rather than tort, leaving the impression that punitive damages would still be allowed. The court was in error in two respects. First, it abused its discretion in instigating an amendment from tort to contract on the day of trial and then...

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