¶ 69. The circuit court denied the plaintiffs' motion to reopen the case, holding that it lacked authority to do so. The court of appeals reversed the circuit court, holding that the plaintiffs were entitled, as a matter of law, to reopen and amend their complaint.
¶ 70. In trying to resolve the case, the majority opinion adopts a new rule (apparently interpreting Wis. Stat. §§ 808.08 and 808.09), holding as follows: "[I]n the absence of a remand order in the mandate line or some other clear directive from the appellate court ultimately deciding the appeal, a circuit court has no authority to reopen the case for an amended complaint after an appellate court has affirmed the dismissal of the complaint in its entirety on the merits." Majority op., ¶¶ 2, 67. See also majority op., ¶ 50. The majority opinion thus devises a new, special rule to reach its result.
¶ 71. Clear, easy-to-apply rules that are not manipulable are valuable. The majority opinion's new rule, however, is not easy to apply, is susceptible to manipulation, and creates tensions and inconsistencies with past precedent.
¶ 72. Moreover, this new rule is at one and the same time too broad to address the facts of the present *132case and too narrow to govern other fact situations. Indeed, the majority opinion recognizes this latter deficiency of its rule. The majority severely curtails and undercuts its new rule with language interpreting Wis. Stat. § 808.09 in paragraph 32 of the majority opinion. This language endorses the traditional, oft-repeated precedential rule relating to a circuit court's power after appellate review and, in effect, engulfs and replaces the textual holding.2
¶ 73. Paragraph 32 explicitly recognizes that a circuit court has "clear authority to carry out the mandate [of the appellate court], whether the appellate court has affirmed or reversed the circuit court" and "also has authority, without explicit direction, to address collateral matters 'left open' in the case, such as costs, preparation and entry of necessary documents, and correction of clerical or computational errors, so long as these actions do not undo the decision of the appellate court. However, there can be no amendments in the trial court that conflict with the expressed or implied mandate of the appellate court." Majority op., ¶ 32. In other words, the circuit court "may permit amendments which are not contrary to the decision of the reviewing court on appeal."3 Contrary to the new rule adopted by the majority opinion, matters remain within the circuit court's discretion and may very well include amendment of the pleadings, so long as they do not conflict with the decision of the appellate court.
*133¶ 74. In contrast with the majority opinion and in accord with the decision of the court of appeals, I conclude that the circuit court retained authority to implement the appellate court's decision in Tietsworth II that left open the plaintiffs' right to pursue contract and warranty claims. I further conclude that the Tietsworth II decision falls within Wis. Stat. §§ 808.08(3) and 808.09 (2003-04),4 which empower a circuit court to reopen a case for further proceedings. Furthermore, § 802.09(1) authorizes the circuit court, in its discretion, to grant the plaintiffs leave to amend the complaint to pursue the contract and warranty remedies this court recognized in the Tietsworth II decision. I therefore dissent.
¶ 75. I would remand this cause to the circuit court and have it decide, within its discretion, whether the plaintiffs should be granted leave under Wis. Stat. § 802.09(1) to amend their pleadings to raise the contract and warranty claims.
¶ 76. I have organized my discussion in this dissent as follows: Part I briefly looks at the changed nature of supreme court review upon the creation of the court of appeals in 1978. Part II critiques the majority opinion's new rule by applying it to the present case. Part III examines and applies Wis. Stat. §§ 808.08(3) and 808.09 to the present case. Part IV discusses § 802.09(1). I conclude that the mandate line is not dispositive of the power of the circuit court after review; the decision is.
h — i
¶ 77. This case must be examined in the context of the supreme court's present review of decisions of the *134court of appeals in contrast to the supreme court's direct consideration of trial court orders and judgments before 1978. Before 1978, that is, before the creation of the court of appeals, this court would directly review an order or judgment of a trial court. If in a pre-1978 appeal the supreme court announced its affirmance of a circuit court order or judgment, the trial court's order or judgment became in effect the judgment of this court.5
¶ 78. Since 1978, upon granting a petition for review,6 the supreme court reviews the decision of the court of appeals, not the judgment or order of the circuit court.7 This court does not ordinarily affirm a judgment or final order of a circuit court on review.8 Any such affirmance must be read into the decision by *135examining the reasoning of this court's decision and the decision of the court of appeals. A careful reading of Tietsworth II demonstrates that the decision never explicitly affirmed the circuit court.9
¶ 79. The majority opinion conveniently ignores that upon granting a petition for review this court does not review a judgment or order of the circuit court and repeatedly — and mistakenly — asserts that in Tietsworth II this court affirmed the circuit court's dismissal of the complaint. See, e.g., majority op., ¶¶ 29, 43, 45. Moreover, the majority opinion equates this court's reversal in Tietsworth II of the decision of the court of appeals (which in turn reversed the circuit court's order of dismissal) not only with an affirmance of the circuit court's dismissal of the tort claims but also with an affirmance of a dismissal of all plaintiffs' claims for all time. Care must be taken not to fall for this sleight of argument.
¶ 80. Nothing in Tietsworth II explicitly states that this court is affirming the circuit court's dismissal of the complaint, let alone that this court is affirming the dismissal of the entire complaint for all time.
¶ 81. Moreover, beware of references to our pre-1978 case law, especially regarding the mandate line. Before 1978, this court directly reviewed circuit court judgments and orders and formulated mandate lines and decisions to that effect. Before 1978, the court also *136used a different style manual that instructed the justices and staff regarding acceptable mandate lines.
¶ 82. The Wisconsin Supreme Court Style and Procedures Manual presently in use states that although the mandate line gives direction, instructions are also given in the body of the decision. It states as follows:
The mandate line gives the court's decision. If it is necessary to include further instructions or direction to another court, that information may be placed in the last paragraph or two of the opinion where it can be easily located. If another court is to take specific action, it is essential that a specific court be mentioned.
The Style and Procedures Manual provides an illustrative, non-exhaustive list of mandate lines, but the use of these mandate lines is not required. As the examples set forth in the majority opinion at ¶ 41 illustrate, the framing of the mandate lines varies.
¶ 83. The mandate line cannot be taken as the dispositive interpretative tool to our decisions. The decision must be read along with the mandate line.
¶ 84. I turn now to critique the majority opinion's new rule by applying it to the present case.
¶ 85. I have organized this part of my dissent as follows:
(A) A critique of the majority's new rule requiring the word "remand" in the mandate and the application of this rule to the present case.
(B) A critique of the majority's new rule requiring "some other clear directive" and the application of this rule to the present case.
*137(C) The significance to the present case of paragraph 32 in the majority opinion and the traditional case law approach to a circuit court's power after a decision of an appellate court and their application to the present case.
A. "Remand" in the Mandate
¶ 86. As part of its holding, the majority opinion fashions a new rule that requires that the mandate line state that the cause is being remanded or that the appellate court provide some other clear directive in order for the circuit court to have authority to reopen the case for the amendment of pleadings. I begin with the first of these requirements: "remand."
¶ 87. The majority opinion endows the word "remand" in the mandate line with magical powers, in spite of the court's ordinary reluctance to require the use of magic words or phrases to command results.
¶ 88. The initial line (the disposition) in our Tietsworth II decision simply states: "Reversed" and the mandate line simply states, "The decision of the court of appeals is reversed." Tietsworth II, 270 Wis. 2d at 151, 172.
¶ 89. The majority opinion's interpretation of Tietsworth II turns on these two lines of the lengthy decision. The majority opinion's reasoning, and its holding for future cases, primarily rest on this court's omission in Tietsworth II of the words "and cause remanded" after the initial word of disposition, "reversed," and the court's omission of the same words "and cause remanded" in the mandate line. The majority opinion concludes that "[i]f we had wanted [in Tietsworth II] to allow the trial court to take further action, we would have specified as much in the mandate .. . ." Majority op., ¶ 44.
*138¶ 90. The word "remand" does not have the same meaning as "remit." The process by which the decision and mandate of the appellate court, along with the circuit court record, are returned to the circuit court is referred to as remittitur. The last sentence of Wis. Stat. § 808.09 is both a remittitur provision and a direction to the circuit court to proceed when it gets the remittitur. It states that "[i]n all cases an appellate court shall remit its judgment or decision to the court below and thereupon the court below shall proceed in accordance with the judgment or decision." See also Wis. Stat. (Rule) § 809.26 (relating to remittitur). The supreme court need not use the word "remand" in the mandate line for the case to be returned (that is, remitted) to the circuit court and for the circuit court to take further action. Section 808.08 supplements § 808.09 and discusses further proceedings in the trial court after remittitur.
¶ 91. Notably, our disposition and mandate in Tietsworth II did not prohibit the plaintiffs from reopening their complaint to plead the contract and warranty claims we had recognized. They did not explicitly order that the action be dismissed in its entirety. They did not explicitly direct that a judgment of dismissal be entered.
¶ 92. Although the majority opinion penalizes the plaintiffs because the court did not use the magic word "remand" in the mandate line, the majority opinion nonetheless recognizes that mandate lines may be Delphic and open to competing interpretations.
¶ 93. The majority opinion acknowledges that motions have been filed in this court to clarify a mandate, see majority op., ¶ 48. Indeed, the majority opinion even faults the plaintiffs for not bringing a motion to clarify the mandate. Majority op., ¶ 48. This *139criticism misses the mark. One reason the plaintiffs may not have sought clarification is that they believed that Tietsworth II allowed them to amend the complaint to assert the contract and warranty claims the decision explicitly stated were available. Furthermore, this court's appellate practice and procedure rules do not explicitly authorize the motion for clarification that the majority opinion embraces. Although such a motion may be a good idea and the court has responded to such motions, they are not the only recognized way to proceed.10
¶ 94. Commentary on appellate practice often complains that appellate decisions are not clear regarding what, if anything, should happen when the trial court record and the supreme court's decision are returned to the trial court. Appellate courts are urged to spell out the consequences, if any, of a decision for further proceedings. In fact, the mandates at ¶ 41 of the majority opinion, which the opinion offers as illustra*140tions, are typical of mandates that are criticized as not helpful.11
¶ 95. The meaning of a mandate line must be deciphered by applying a generally accepted rule of interpretation: Interpret words in their context. Thus, the mandate line must be interpreted in light of the text of the lengthy decision itself. The majority opinion, despite the rigid and formalistic components of its rule, actually agrees with this interpretive approach. Majority op., ¶ 47. I now attempt to apply it.
B. "Some Other Clear Directive"
¶ 96. The failure of the mandate line to include the word "remand" does not sink the circuit court's powers. The majority opinion allows a circuit court to reopen a case and amend the pleadings when "in the absence of a remand order in the mandate line," the circuit court "is given some other clear directive from *141the appellate court" (emphasis added). Majority op., ¶¶ 2, 67. The standard "some other clear directive" is not easy to apply and is susceptible to manipulation.
¶ 97. As I see it, this court in Tietsworth II did give the circuit court a clear directive. In Tietsworth II, the court announced that the plaintiffs have warranty and contract remedies for the alleged defects in their motorcycles and did not declare that these remedies were barred:
As such, the plaintiffs have warranty remedies for the alleged defects in their motorcycles. In addition, there are contract remedies at law and in equity to the extent that the plaintiffs were fraudulently induced to purchase their motorcycles. A contract fraudulently induced is void or voidable; a party fraudulently induced to enter a contract may affirm the contract and seek damages for breach or pursue the equitable remedy of rescission and seek restitutionary damages.... The economic loss doctrine does not bar these contract remedies for fraudulently induced contracts....
Tietsworth II, 270 Wis. 2d 146, ¶ 36.
¶ 98. The court continued, stating that although the plaintiffs are barred from pursuing tort claims, they may have contract remedies:
In short, we see no reason to recognize an exception to the economic loss doctrine to allow this consumer contract dispute to be remedied as an intentional misrepresentation tort. The economic loss doctrine bars the plaintiffs' common-law fraud claim. The plaintiffs may have contract remedies — breach of contract/warranty or rescission and restitution — but may not pursue a tort claim for misrepresentation premised on having purchased allegedly defective motorcycles.
Tietsworth II, 270 Wis. 2d 146, ¶ 37.
*142¶ 99. The majority opinion unpersuasively plays down the importance of these two lengthy paragraphs in Tietsworth II, in which the court explicitly declared that the plaintiffs have viable claims against Harley-Davidson grounded in contract and warranty.12
¶ 100. The majority opinion asserts in a conclu-sory fashion that the Tietsworth II court was simply saying that the economic loss doctrine would not bar these claims, not that the plaintiffs may bring these claims. Majority op., ¶ 47. And how does the majority opinion divine that these two paragraphs do not give the plaintiffs the opportunity to bring their contract claims? By just saying that the two paragraphs "are fairly interpreted as this court's explanation of the application of the economic loss doctrine to fraud claims." Majority op., ¶ 47. That's the legal equivalent of a parent answering a child's query of "why" with a "because I said so."
¶ 101. I conclude that paragraphs 36 and 37 in Tietsworth II are just as easily and just as fairly interpreted as leaving open the opportunity for the plaintiffs to bring contract and warranty claims. The Tietsworth II court acknowledged that the plaintiffs "have warranty remedies" and "may have contract remedies" claims (emphasis added). The Tietsworth II court *143deliberately employed the present tense in these paragraphs, not the past tense, thus leaving open the possibility that the plaintiffs may pursue these claims in the future.
¶ 102. That the mandate line in Tietsworth II does not explicitly remand the cause to the circuit court for purpose of allowing the plaintiffs to amend the complaint does not dispel the significance of our language in paragraphs 36 and 37. That the court did not explicitly direct or order a remand or an amendment to the pleadings is not unexpected. The plaintiffs did not request a remand to amend the complaint. It is likewise inconsequential that the court did not provide, in the paragraphs preceding the mandate, instructions to the plaintiffs in regard to bringing these claims. The court does not usually give legal advice to the parties and does not ordinarily address amendments to the pleadings unless raised by the parties.
¶ 103. Under the circumstances of the Tietsworth II case, an appellate court would not necessarily order the plaintiffs to file an amended complaint asserting these additional theories of liability and would not likely provide explicit guidance in regard to amending the complaint, but it might — and did — leave open the possibility that the plaintiffs may take the initiative under Wis. Stat. §§ 808.08(3) and 802.09(1) to file an amended complaint.
¶ 104. If the majority opinion is looking for "some clear directive" that the amendment of the pleadings is permitted on remittitur, paragraphs 36 and 37 in Tietsworth II may be as clear a directive as the court could legitimately provide given the issue actually before the court and the procedural posture of the case.
*144C. Majority Opinion Paragraph 32 and the Traditional Approach
¶ 105. Until it was altered today by the holding in the instant case (although retained in paragraph 32), the traditional pre-1978 rule was that a circuit court must comply with the appellate court's decision but has the authority to take further action in a case as long as the action is not inconsistent with the decision of the appellate court.13 The permissible further actions included reopening a case and amending the pleadings, so long as the amendments did not conflict with the decision of the appellate court. Recognizing that this court is fallible and that not all circumstances are foreseen or foreseeable, this court adopted a rule that gave some flexibility to the circuit court after an appeal was decided.
*145¶ 106. Citing Fullerton Lumber Co. v. Torbord, 274 Wis. 478, 80 N.W.2d 461 (1957), this court has endorsed the pre-1978 view of a circuit court's powers in post-1978 cases, stating, "Where a mandate directs the entry of a particular judgment, it is the duty of the trial court to proceed as directed. The trial court may, however, determine any matters left open, and in the absence of specific directions, is generally vested with a legal discretion to take such action, not inconsistent with the order of the upper court, as seems wise and proper under the circumstances." State ex rel. J.H. Findorff & Son, Inc. v. Circuit Court for Milwaukee County, 2000 WI 30, ¶ 25, 233 Wis. 2d 428, 608 N.W.2d 679.14 The court of appeals has similarly followed Fullerton, declaring that a circuit court is bound to follow the mandate of the court of appeals (which covered only some issues in that case) but "also has the authority to address any remaining unresolved issues, so long as it acts in a mariner consistent with [the appellate court's] mandate." Harvest Sav. Bank v. ROI Invs., 228 Wis. 2d 733, 738, 598 N.W.2d 571 (Ct. App. 1999).
¶ 107. The majority opinion attempts to distinguish Findorff and Fullerton from Tietsworth II, stating that in the prior cases, in contrast with Tietsworth II, the mandate line remanded the cause to the circuit court. See majority op., ¶ 55. The Findorff court did not give weight to any difference in the Findorff and Fullerton mandates in vesting discretion with the circuit court. See Findorff, 233 Wis. 2d at 428, ¶ 25 n.16.
*146¶ 108. In Sutter v. State, 69 Wis. 2d 709, 717, 233 N.W.2d 391 (1975), a pre-1978 case, the mandate line stated, "Judgment reversed and cause remanded with directions to enter judgment not inconsistent with this opinion." On remand the plaintiffs in that case sought relief from the judgment and leave to amend their complaint. The Sutter court held against the plaintiffs, declaring, "The trial court has no authority to amend the pleadings after remittitur with the mandate of this court providing specific directions for the entry of a particular judgment."15 Nevertheless Sutter recognized this rule was not ironclad, stating:
Generally, amendments are not permissible on remand where the case was determined on the merits. After final judgment has been rendered or directed on appeal, ordinarily the trial court has no power to allow the amendment of the pleadings ... ,16
¶ 109. The key words in Sutter for purposes of the present case are "generally" and "ordinarily." The Sutter court deliberately used these "appellate-court-wiggle-room-words" twice to signal the reader that exceptions exist to the rule that amendments are not permissible when the appeal was determined on the merits.17
*147¶ 110. Tietsworth II falls within the traditional rule and paragraph 32 of the majority opinion. The decision left open the opportunity for the plaintiffs to pursue contract and warranty remedies. The plaintiffs' pursuit of these contract claims is consistent with our reversal of the decision of the court of appeals and the circuit court's dismissal of the tort claims in the complaint.
¶ 111. Furthermore, although I conclude that Tietsworth II specifically left open the plaintiffs' contract and warranty claims, other members of the court disagree with me and with each other about what Tietsworth II means. If we who write the opinions and the mandates cannot agree about the meaning of Tietsworth II, it is perfectly understandable that the parties disagree and that the three members of the court of appeals disagree with the circuit court judge about the import of our decision.
¶ 112. Inasmuch as this substantial difference of opinion exists about Tietsworth II, should not this court err on the side of giving the plaintiffs their day in court?
¶ 113. I turn now to Wis. Stat. § 808.08(3).
rH I — I HH
¶ 114. Wisconsin Stat. § 808.08 describes, according to the majority opinion at ¶ 33, what the circuit court must or may do upon receiving the remittitur pursuant to § 808.09.
¶ 115. Wisconsin Stat. § 808.08 provides in full as follows:
Further proceedings in trial court. When the record and remittitur are received in the trial court:
(1) If the trial judge is ordered to take specific action, the judge shall do so as soon as possible.
*148(2) If a new trial is ordered, the trial court, upon receipt of the remitted record, shall place the matter on the trial calendar.
(3) If action or proceedings other than those mentioned in sub. (1) or (2) is ordered, any party may, within one year after receipt of the remitted record by the clerk of the trial court, make appropriate motion for further proceedings. If further proceedings are not so initiated, the action shall be dismissed except that an extension of the one-year period may be granted, on notice, by the trial court, if the order for extension is entered during the one-year period.
¶ 116. The dispute between the parties centers on subsection (3) of Wis. Stat. § 808.08. Unlike Wis. Stat. § 808.08(1) and (2), which are addressed to the circuit court, § 808.08(3) is addressed to the parties. Subsection (3) preserves a party's ability to move the circuit court for "further proceedings." Subsection (3) instructs that a party may "make appropriate motion for further proceedings" within a year, or the action will be dismissed. The plaintiffs moved the circuit court pursuant to Wis. Stat. § 808.08(3) within a year for further proceedings.
¶ 117. Wisconsin Stat. § 808.08 has been in the statute books for many years with substantially the same language, although the statute has been renumbered several times.
¶ 118. Chapter 187, Laws of 1977 renumbered former Wis. Stat. § 817.36 (1975) as Wis. Stat. § 808.08, making only minor changes in the statutory language for clarification purposes.18 Former § 817.36 (1975) itself was formerly numbered Wis. Stat. § 274.36 *149(1971). See In the Matter of the Promulgation of the Rules of Civil Procedure for the State of Wisconsin, 67 Wis. 2d 585, 761 (1975).19 No change in statutory language was made.20 By supreme court order dated November 10, 1964 and effective March 1,1965, former § 274.36 (1963) was repealed and recreated as § 274.36 (1965).21
*150¶ 119. Although brief, my recitation of the lengthy history of Wis. Stat. § 808.08 is sufficient for purposes of this dissent. I want to make the following point: Section 808.08 has been on the books for a long time, but the key cases stating what I call the traditional rule of a circuit court's power after an appellate decision {see, e.g., Fullerton and Sutter) do not rest the traditional rule on the language of § 808.08 or its predecessor. If § 808.08 (or other numbered version of the statute) is mentioned in the cases, the citation is only in passing. These cases rely on Wis. Stat. § 808.09 or its predecessor statutes.
¶ 120. In contrast, the majority opinion appears to peg its holding about the circuit court's power to Wis. Stat. § 808.08, which the majority opinion characterizes as "plain." Majority op., ¶ 36. The majority opinion states that § 808.08(3) is triggered if and when the appellate court directs or commands or instructs the trial court to take "action" other than the "specific action" or new trial described in subsections (1) and (2), and gives examples at paragraph 41.
¶ 121. Although it bases its reasoning primarily on Wis. Stat. § 808.08(3), the majority fails to engage in a proper interpretation of this statute. The court wrestled with the meaning of § 808.08(3) in State ex rel. J.H. Findorff & Son v. Circuit Court for Milwaukee County, 233 Wis. 2d 428, 608 N.W.2d 679 (1999), while interpreting and applying §§ 808.08 and 801.58(1).
¶ 122. As acknowledged by the majority opinion, the Findorff court drew a distinction between "specific action" and "further proceedings," in subsections (1) and (3) of § 808.08 respectively. Majority op., ¶ 37. It concluded that "specific action" in subsection (1) refers to a circuit court's ministerial duty and "further proceedings" in subsection (3) refers to any proceeding in which *151the circuit court will exercise discretion. Findorff, 233 Wis. 2d at 442-43. See also In re Commitment of Thiel, 2004 WI App 140, ¶ 27, 275 Wis. 2d 421, 685 N.W.2d 890 (viewing § 808.08(3) as applying by default when neither subsection (1) nor (2) applies and acknowledging this court's narrow definition of "specific action" in § 808.08(1)).
¶ 123. According to Findorff, the mere recitation of a mandate does not tell us whether the mandate falls within § 808.08(1) or (3). Under Findorff, this determination requires a careful examination of each case to determine whether the circuit court will perform a ministerial duty or a discretionary act. Findorff, 233 Wis. 2d at 448-49. The majority opinion does not engage in the careful analysis of ministerial and discretionary duties as required by Findorff.
¶ 124. Moreover, the majority opinion errs in its interpretation of Findorff, resulting in an application that chokes all meaning out of § 808.08(3). As I see it, to give subsection (3) meaning, that is, for it not to be superfluous, it must be interpreted to allow the parties to move for further proceedings in the circuit court when a circuit court is not required by subsections (1) and (2) to act upon its own, that is, when an appellate court does not order or direct or give instructions about specific actions (subsection (1)) or a new trial (subsection (2)). In other words, subsection (3) is triggered when the mandate does not fall within subsections (1) or (2). What else can subsection (3) mean?
¶ 125. Subsection (3) must be read harmoniously with the authority supplied to the circuit court pursuant to Wis. Stat. § 808.09. Subsection (3) thus encompasses cases that fall under the traditional rule, namely that a circuit court must comply with the appellate court's decision but has the authority to take further *152action in a case as long as the action is not inconsistent with the decision of the appellate court. Subsection (3) allows parties to petition the circuit court to take these discretionary actions that are not explicitly commanded by the mandate but are not inconsistent with the decision. How else would the parties be able to implement the traditional rule embodied in § 808.09?
¶ 126. The majority opinion expresses great horror at the court of appeals decision in the instant case, exclaiming that "the court of appeals turned Tietsworth II into little more than an advisory opinion." Majority op., ¶ 40. Wrong! Tietsworth II remains the definitive decision in regards to the plaintiffs' tort claims. The circuit court cannot undo or undermine the initial judgment and certainly cannot revive those dismissed claims. The circuit court, however, retains authority, within its discretion, to permit the plaintiffs to bring the contract and warranty remedies recognized by the Tietsworth II court. This is not a power " 'to set at naught the judgments of this court.'" Majority op., ¶ 40 (quoted source omitted).
¶ 127. Underlying much of the majority opinion's interpretation of Tietsworth II and Wis. Stat. § 808.08 is the public policy of finality. I agree that finality is important. Indeed the legislature expressly embraced finality in Wis. Stat. § 808.08(3): A party must bring proceedings under § 808.08(3) within one year or be forever barred. The court should follow the legislative directive.
¶ 128. It is clearly desirable that litigation come to an end. But it is also clearly desirable in the present case that the doors of the courthouse be open to consumers, the purchasers of the motorcycles at issue, who (in the very words of this court) have valid contract and warranty claims that have not been *153barred explicitly. The majority opinion should not determine the point of finality upon remand when Wis. Stat. § 808.08(3) explicitly provides a point of finality: This statute permits a party to move for further proceedings consistent with the appellate opinion within one year. The plaintiffs in the present case met this deadline.
¶ 129. Furthermore, despite this case's lengthy procedural history, the plaintiffs have not yet had their fabled "day in court." The plaintiffs have never had the opportunity to present the consumer complaints to a judge or a jury.
¶ 130. That the majority opinion denies the plaintiffs their day in court on the merits of their claims conflicts with basic concepts of justice and the clear policy of modern law favoring access to the courts and adjudication of cases on their merits.22
¶ 131. After examining Tietsworth II, the traditional rule about a circuit court's power after an appellate decision, Wis. Stat. § 808.08, and the public policy of finality, I conclude that the circuit court has the authority, pursuant to § 808.08(3) and paragraphs 36 and 37 of Tietsworth II, to reopen the plaintiffs' case to consider amending the pleadings.
IV
¶ 132. Under Wis. Stat. § 802.09(1), a party may seek leave of the circuit court at any stage of the proceedings, including after judgment, to amend the *154pleadings "and leave shall be freely given at any stage of the action when justice so requires" (emphasis added).23
*155¶ 133. Because the majority opinion concludes that the circuit court did not have authority to reopen the case for purposes of amendment of the complaint, its discussion of Wis. Stat. § 802.09 is unnecessary and irrelevant.
¶ 134. Because I conclude that the circuit court has power under Tietsworth II and Wis. Stat. § 808.08(3) to reopen the case, I reach the question of the circuit court's power under Wis. Stat. § 802.09(1) to grant the plaintiffs leave to amend their complaint.
¶ 135. In Mach v. Allison, 2003 WI App 11, 259 Wis. 2d 686, 656 N.W.2d 766, the court of appeals concluded that the words "at any stage of the action" in the present statute mean exactly what they say, having retained the previous statute's application to amendments "before or after judgment." Mach, 259 Wis. 2d 686, ¶ 23. Mach held that "the statement. . . that a trial court may grant a motion to amend, either before or after judgment, is still a correct statement of the law.. . . [Wjhether the amendment is before or after judgment does have a bearing on what justice requires." Mach, 259 Wis. 2d 686, ¶ 24. According to Mach, the timing of the motion and the reason for not bringing it sooner are relevant factors for a circuit court to consider in determining what justice requires.
¶ 136. Because the circuit court did not exercise its discretion under Wis. Stat. § 809.02 in the present case, I would remand the cause to the circuit court to exercise its discretion. I disagree with the court of appeals, which permitted the amendment of the pleading as a matter of law. The statute commits the decision whether to allow amendment to the circuit court's discretion.
¶ 137. I would remand the cause to the circuit court to apply Mach in exercising its discretion.
*156¶ 138. For the reasons set forth, I conclude that the circuit court and majority opinion have erred as a matter of law in declaring that the circuit court in the present case does not have power to reopen the case for amendment of the pleadings. I therefore dissent.
¶ 139. I am authorized to state that Justices ANN WALSH BRADLEY and N. PATRICK CROOKS join this opinion.
See State ex rel. J.H. Findorff & Son, Inc. v. Circuit Court for Milwaukee County, 2000 WI 30, ¶ 25, 233 Wis. 2d 428, 608 N.W.2d 679, quoting with approved J.H. Fullerton Lumber Co. v. Torborg, 274 Wis. 478, 483, 80 N.W.2d 461 (1957) (discussed at ¶ 106 and notes 13, 14 of this dissent).
6A Callaghan's Wisconsin Pleading & Practice, § 55:81 (4th ed. 2005) (citations omitted).
All references to the Wisconsin statutes are to the 2003-04 version unless otherwise noted.
Hoan v. Journal Co., 241 Wis. 483, 485, 6 N.W.2d 185 (1942).
This court also accepts cases on certification from the court of appeals and on bypass. In these instances, the court takes a direct appeal from the circuit court and decides whether to affirm or reverse a judgment or order of the circuit court. The present case is here on a petition to review a decision of the court of appeals, not certification or bypass.
Although the supreme court reviews the decision of the court of appeals, the supreme court is directed to remit, that is to send back, to the circuit court the circuit court record and the supreme court's decision (unless the court of appeals is to act further). The process by which the decision and mandate of the appellate court, along with the circuit court record, are returned to the circuit court is referred to as remittitur. Wis. Stat. (Rule) § 809.26.
Occasionally a decision of this court on a petition for review explicitly affirms the circuit court's order or judgment. See, e.g., State v. Jenich, 94 Wis. 2d 74, 288 N.W.2d 114 (1980). There, the text announced an affirmance of a circuit court order. The mandate line in Jenich also expressly stated: "Decision of the court of appeals is reversed; order of the circuit court is affirmed."
The majority opinion supports its conclusion that this court affirmed the judgment or final order of the circuit court by snipping and pasting various phrases in Tietsworth II that describe the order of the circuit court as dismissing the complaint in its entirety, and then bootstraps a conclusion that in reversing the court of appeals this court "affirmed the circuit court's judgment dismissing the entire action." Majority op., ¶ 45.
The defendant suggests that the procedural remedy may be to move the court to reconsider under Wis. Stat. § 809.64 and the Internal Operating Rules, § IIJ. In Johann v. Milwaukee Electric Tool Corp., 270 Wis. 573, 579, 72 N.W.2d 401 (1955), the court concluded (without citation) that when filing its motion for a rehearing (now a motion for reconsideration) the party should have raised any question about any ambiguity in the remand. Johann does not speak to a case in which no party seeks a motion for rehearing or reconsideration. It is also arguable that the remedy of a party aggrieved when a circuit court does not follow a mandate of an appellate court is to seek mandamus in the appellate court that issued the decision. See, e.g., Litzen v. Eggert, 238 Wis. 121, 123, 297 N.W. 382 (1941); State ex rel. Blackdeer v. Township of Levis, 176 Wis. 2d 252, 259, 500 N.W.2d 339 (Ct. App. 1993); 6A Callaghan's Wisconsin Pleading & Practice, § 55:82 (4th ed. 2005) (citations omitted).
Barbara Green, Cracking the Code: Interpreting and Enforcing the Appellate Court's Decision and Mandate, 32 Stetson L. Rev. 393, 394, 402 (2002) (discussing the difficulties involved with deciphering mandates from the appellate court and announcing that "it would be helpful for appellate courts to give clear guidance to the trial court and to the parties" following remand). Green chides appellate courts, writing that trial courts and lawyers sometimes need to look for a "Rosetta Stone" to decipher appellate mandates. Id. at 393. According to this author, the mandate lines set forth in the majority opinion at ¶ 41 do not satisfy the standards of clarity recommended in this article.
Nancy A. Wanderer, in Writing Better Opinions: Communicating with Candor, Clarity, and Style, 54 Me. L. Rev. 47, 60 (2002), also explains that "[i]f the case on appeal is to be remanded, the appeals court should provide clear directions about what the trial court should do on remand. In this way, subsequent appeals may be avoided." Id. at 60.
Specifically, the plaintiffs wanted to allege that Harley-Davidson fraudulently induced class members to purchase the motorcycles; that Harley-Davidson breached the express warranty that the motorcycles and engines were free from defects in factory materials and workmanship at the time of sale and for a period of 12 months thereafter; and that Harley-Davidson was unjustly enriched. The first two of these claims, warranty and contract, were explicitly recognized by this court, and the third claim, unjust enrichment, is a corollary of the plaintiffs' contract claims.
See, e.g., Fullerton Lumber Co. v. Torborg, 274 Wis. 478, 483-84, 80 N.W.2d 461 (1957). This rule was based in part on Wis. Stat. § 808.09 (and its predecessor statutes), which not only guides the actions an appellate court may take on appeal but also instructs that the circuit court must act in accordance with the appellate court's rulings on remittitur. Wisconsin Stat. § 808.09 provides that an appellate court may reverse, affirm, or modify the judgment or order; may order a new trial; or, if the appeal is from a part of the judgment or order, it may reverse, affirm, or modify that part of the judgment or order. Wisconsin Stat. § 808.09 then states in relevant part that "[i]n all cases an appellate court shall remit its judgment or decision to the court below and thereupon the court below shall proceed in accordance with the judgment or decision." Courts have interpreted the language "shall proceed in accordance with the judgment" as not limiting the circuit court's ability to take action, so long as the action is not inconsistent with the decision from the appellate court. See, e.g., Fullerton Lumber Co., 274 Wis. at 482-83 (citing Wis. Stat. § 274.35(1), the predecessor statute to Wis. Stat. § 808.09, for the proposition that the circuit court may act on matters "left open").
In Findorff, 233 Wis. 2d 428, 25 (citing Fullerton, 274 Wis. at 483), the court declared- that the traditional view [is] that a circuit court often has some discretion on remand to resolve matters not addressed by a mandate in a manner consistent with that mandate.
The Sutter court distinguished Fullerton Lumber on the ground that the Sutter mandate directed the entry of a particular judgment. It interpreted the mandate as not requiring further proceedings. Sutter, 69 Wis. 2d 717-18.
Id. at 717 (citations omitted) (emphasis added).
See also State ex rel. Freeman Printing Co. v. Luebke, 36 Wis. 2d 298, 304, 152 N.W.2d 861 (1967) ("An appeal from a final judgment would normally remove the complete case from the trial court at the time the appeal was perfected.") (emphasis added).
Chapter 187, Laws of 1977; 1977 S.B. 1. The legislative note from the Legislative Reference Bureau that accompanies the 1977 change emphasizes that"[i]t contains no substantive *149change." Analysis by the Legislative Reference Bureau, 1977 S.B. 1, LRB-9037/1, in Bill Drafting File on 1977 S.B. 1, available at Wisconsin Legislative Reference Bureau, 1 East Main Street, Madison, Wisconsin.
This supreme court order was dated February 17, 1975 and took effect January 1, 1976, and adopted in part, substantially revised in part, and reorganized the rules governing civil procedure into a comprehensive structure known as the Wisconsin Rules of Civil Procedure. Former § 274.36 was incorporated wholesale into chapter 817.
An earlier Supreme Court Order, dated March 31, 1971 and effective July 1,1971, made minor changes in the statutory language of former § 274.36, "to clear up an ambiguity in the present language." 50 Wis. 2d xvii. No substantive changes were effected.
1964 Supreme Court Order, 25 Wis. 2d vii (1964). An earlier version of the statute is found in Zeidler v. Goelzer, 191 Wis. 378, 388, 211 N.W. 140 (1926) as follows:
In every case in error or on appeal in which the Supreme Court shall order a new trial or further proceedings in the court below, the record shall be transmitted to such court and proceeding had thereon within one year from the date of such order in the Supreme Court, or in default thereof the action shall be dismissed, unless, upon good cause shown, the court shall otherwise order. It shall be the duty of the losing party in any action or proceeding when a judgment or order in his favor in the court below is reversed by the Supreme Court on the appeal of the opposing party to pay the clerk's fees on such reversal, procure the record in said cause to be remitted to the trial court and bring the cause to trial within one year after such reversal, unless the same be continued for cause, and if he fail so to do, his action shall be dismissed.
See, e.g., Gaddis v. La Crosse Products, Inc., 198 Wis. 2d 396, 407, 542 N.W.2d 454 (1996); Schlumpf v. Yellick, 94 Wis. 2d 504, 511, 288 N.W.2d 834 (1980).
Wisconsin Stat. § 802.09 provides in relevant 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. A party shall plead in response to an amended pleading within 45 days after service of the amended pleading, or within 20 days after the service if the proceeding is to foreclose or otherwise enforce a lien or security interest, unless (a) the court otherwise orders or (b) no responsive pleading is required or permitted under s. 802.01(1).
(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 he 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. The court may grant a continuance to enable the objecting party to meet such evidence.
(3) Relation back of amendments. If the claim asserted in the amended pleading arose of the transaction, occurrence, or event set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the filing of the original pleading. An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by law for commencing the action against such party, the party to be brought in by amendment has received such notice of the institution of the action that he or she will not be prejudiced in maintaining a defense on the merits, and knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against such parly.