SUBCHAPTER VIII
MISCELLANEOUS PROCEDURES IN COURT OF APPEALS AND SUPREME COURT
809.80 Rule (Filing and service of papers).
809.81 Rule (Form of papers).
809.82 Rule (Computation and enlargement of time).
809.83 Rule (Penalties for delay or noncompliance with rules).
809.84 Rule (Applicability of rules of civil procedure).
809.85 Rule (Counsel to continue).
DEFINITIONS
809.01
809.01
Rule (Definitions). In this chapter:
809.01(1)
(1) "Appeal" means a review in an appellate court by appeal or writ of error authorized by law of a judgment or order of a circuit court.
809.01(2)
(2) "Appellant" means a person who files a notice of appeal.
809.01(3)
(3) "Co-appellant" means a person who files a notice of appeal in an action or proceeding in which a notice of appeal has previously been filed by another person and whose interests are not adverse to that person.
809.01(4)
(4) "Court" means the court of appeals or, if the appeal or other proceeding is in the supreme court, the supreme court.
809.01(5)
(5) "Cross-appellant" means a respondent who files a notice of cross-appeal.
809.01(5d)
(5d) "Monospaced font" means a font in which each character uses an equal amount of horizontal space.
809.01(5g)
(5g) "Proportional font" means a font in which the horizontal space used by a character varies.
809.01(6)
(6) "Respondent" means a person adverse to the appellant or co-appellant.
809.01(8)
(8) "Serif font" means a font that has short ornaments or bars at the upper and lower ends of the main strokes of the characters.
809.01(8m)
(8m) "Sixty characters per full line" means the length of a nonindented line of 13 point proportional serif font characters determined by using a line composed of a repeating string of lowercase characters in alphabetical order.
809.01(12)
(12) "Word" means a group consisting of one or more alphabetical characters with a space or punctuation mark preceding and succeeding the group.
809.01 History
History: Sup. Ct. Order, 83 W (2d) xiii (1978);
1977 c. 449; Sup. Ct. Order No.
93-20, 179 W (2d) xxv.
809.01 Note
Judicial Council Committee's Note, 1978: The definitions reflect some of the changes incorporated into the rules. The term "appeal" applies both to an appeal authorized by statute and the writ of error guaranteed by Section 21 of Article I of the Constitution. The objective of these rules is to provide the same procedure for appeals and writs of error. Historically, the review authorized by a writ of error was limited to questions of law, while both the law and the facts could be reviewed on appeal. The Wisconsin Supreme Court does not distinguish between its power in appeals and in writs of error. Although under the former procedure appeals were normally used in civil cases and writs of error in criminal cases, the only differences between them were in nomenclature and method of initiating the review process. There is no reason to retain the formalistic differences between them.
809.01 Annotation
The definitions of the parties to the appeal are intended to change the former statute, section 817.10, under which the party first appealing was the appellant, and all other parties were respondents. This often resulted in a party with interests identical to the appellant being labeled a respondent, while two parties opposed to each other were both labeled respondents. Under this section the party first appealing is the appellant, parties appealing from the same judgment or order not opposed to the appellant are co-appellants, and parties adverse to the appellant or co-appellant are respondents. The terms "plaintiff in error" and "defendant in error" previously used in connection with writs of error are no longer used. [Re Order effective July 1, 1978]
CIVIL APPEAL PROCEDURE IN COURT OF APPEALS
809.10
809.10
Rule (Initiating the appeal). 809.10(1)(a)(a)
Filing. A person shall initiate an appeal by filing a notice of appeal with the clerk of the trial court in which the judgment or order appealed from was entered and shall specify in the notice of appeal the judgment or order appealed from, whether the appeal is in one of the types of cases specified in
s. 752.31 (2), and whether the appeal is one of those to be given preference in the circuit court or court of appeals pursuant to statute. The person at the same time shall notify the court of appeals of the filing of the appeal by sending a copy of the notice of appeal to the clerk of the court. The person shall also send the court of appeals an original and one copy of a completed docketing statement on a form prescribed by the court of appeals. The statement shall accompany the court of appeals' copy of the notice of appeal. The person shall also send a copy of the completed docketing statement to opposing counsel. Docketing statements need not be filed in criminal cases or in cases in which a party appears pro se.
809.10(1)(b)
(b)
Time for filing. The notice of appeal must be filed within the time specified by law. The filing of a timely notice of appeal is necessary to give the court jurisdiction over the appeal.
809.10(2)(a)(a)
Joint and co-appeals. If 2 or more persons are each entitled to appeal from the same judgment or order entered in the same action or proceeding in the trial court and their interests are such as to make joinder practicable, they may file a joint notice of appeal or may, after filing separate notices of appeal, proceed as a single appellant. If the persons do not file a joint appeal or elect to proceed as a single appellant, or if their interests are such as to make joinder impracticable, they shall proceed as appellant and co-appellant, with each co-appellant to have the same procedural rights and obligations as the appellant.
809.10(2)(b)
(b)
Cross-appeal. A respondent who seeks a modification of the judgment or order appealed from or of another judgment or order entered in the same action or proceeding shall file a notice of cross-appeal within the period established by law for the filing of a notice of appeal, or 30 days after the filing of a notice of appeal, whichever is later. A cross-appellant has the same rights and obligations as an appellant under this chapter.
809.10(3)
(3) Consolidated appeals in separate cases. The court may consolidate separate appeals in separate actions or proceedings in the trial court upon its own motion, motion of a party, or stipulation of the parties.
809.10(4)
(4) Matters reviewable. An appeal from a final judgment or final order brings before the court all prior nonfinal judgments, orders and rulings adverse to the appellant and favorable to the respondent made in the action or proceeding not previously appealed and ruled upon.
809.10 History
History: Sup. Ct. Order, 83 W (2d) xiii (1978); Sup. Ct. Order, 104 W (2d) xi (1981);
1981 c. 390 s.
252; Sup. Ct. Order, 123 W (2d) xix (1985); Sup. Ct. Order, 131 W (2d) xv (1986);
1987 a. 403; Sup. Ct. Order, 161 W (2d) xiii (1991); Sup. Ct. Order No.
93-19, 179 W (2d) xxiii.
809.10 Cross-reference
Cross-reference: Statutes requiring preference [under (1) (a)] include ss.
9.01 (9) (c),
9.10 (4) (c),
30.30 (3) (c),
62.50 (21),
66.014 (7) (b),
66.021 (10) (b),
66.05 (2) (b) and
(3),
70.47 (13) and
(16) (a),
70.85 (1),
78.72,
87.16,
103.59,
227.25 and
227.26.
809.10 Annotation
See s. 767.15 (2) for appeals involving child support and maintenance.
809.10 Annotation
Court of Appeals Note, 1986: Sub. (1) (a) is amended to require appellants to file a docketing statement in the court of appeals on a form prescribed by the court at the time the notice of appeal is filed in the trial court. The docketing statement will provide the court with information for its expedited appeals program pursuant to s. 809.17 and the rules and procedures set forth in Section VII, Expedited Appeals, of the Court of Appeals Internal Operating Procedures (amended March 1, 1986). Docketing statement forms are available in the offices of clerks of the circuit courts. [Re Order effective January 1, 1987]
809.10 Note
Judicial Council Committee's Note, 1978: Sub. (1) (a) establishes the same procedure for initiating a review by the Court of Appeals whether it be the statutory appeal or constitutional writ of error. Both are begun by filing a notice of appeal in the trial court. The prior procedure under which a person could obtain a writ of error from the Supreme Court and then file it in the trial court at his leisure is eliminated. It is important to recognize that the right to seek review by writ of error as established by the Constitution is not abolished, but the procedure for seeking that review is made uniform with that for filing an appeal.
809.10 Annotation
The second sentence of sub. (1) (b) is designed to change the law as declared in former s. 817.11 (4), and the decisions of the Supreme Court interpreting former s. 269.59 (1), under which the Supreme Court was vested with subject matter jurisdiction when an appealable order was entered. Under former s. 817.11 (4), the notice of appeal was necessary only to confer personal jurisdiction which could have been waived. The court often had to decide whether the respondent by some conduct, such as signing a stipulation or receiving a brief, had waived any objection to personal jurisdiction. The result was that a judgment of a trial court in Wisconsin was never completely final because even after the expiration of the time for an appeal a party could still appeal, and if the respondent failed to object or take some step that could be considered as participating in the appeal prior to objecting, the Supreme Court was able to review the judgment. This section conforms Wisconsin practice to that in the federal system and most other states.
809.10 Annotation
Sub. (2) (a) provides that appellants whose interests are substantially identical may proceed jointly or separately. See Rule 3 (b), Federal Rules of Appellate Procedure (FRAP). If they do not wish to proceed jointly, or their interests are not the same, or if they are challenging from the same judgment or order, the subsequent appeal should be docketed with the first appeal, but the second person appealing has the same procedural rights, such as filing of briefs, as the first appellant. The respondent has separate briefing rights as to each appellant and co-appellant filing a separate brief. It is anticipated under this section that all appeals arising out of the same case filed within the same appeal period will be considered in a single appeal and not be treated as separate cases in the Court of Appeals.
809.10 Annotation
Sub. (2) (b). The respondent who desires to challenge a judgment or order must file a notice of cross-appeal. Notices of review are abolished. Under former s. 817.12, it was very difficult to ascertain when a notice of review or cross-appeal was appropriate. Requiring a notice of cross-appeal in each instance eliminates this confusion. The respondent is given a minimum of 30 days after the filing of the notice of appeal to determine whether to file a cross-appeal. As was the case under former s. 817.12, a respondent loses the right to cross-appeal if the cross-appeal is not filed within the specified time.
809.10 Annotation
Sub. (3). Appeals from judgments or orders in separate cases in the trial court are docketed as separate appeals in the Court of Appeals. If appropriate, these cases can be consolidated after docketing by order of the Court of Appeals. Rule 3 (b), FRAP.
809.10 Annotation
Sub. (4). The provision of former s. 817.34 that an appeal from a final judgment brings before the court for review all of the prior orders entered in the case is continued. This does not apply, however, to any prior final order or judgment which could have been appealed as of right under s. 808.03 (1). Thus a judgment dismissing a codefendant from a case must be appealed immediately and cannot be reviewed when judgment is rendered on the plaintiff's claim against the other defendants. Nonfinal orders and judgments that are appealed and ruled upon by the Court of Appeals are, of course, not subject to further review upon appeal of the final judgment. This section is also limited to those orders made in favor of the named respondents to prevent the possibility of the court reviewing an order in favor of a person not a party to the appeal.
809.10 Annotation
A change is made in prior law in that an interlocutory judgment, Rule 806.01 (2), which previously must have been appealed within the statutory period from the entry of the interlocutory judgment, Richter v. Standard Manufacturing Co., 224 Wis. 121, 271 N.W. 14 (1937), is now reviewable by the Court of Appeals upon an appeal of the final judgment. The objective is to have only one appeal in each case, absent unusual circumstances which would justify an appeal from a nonfinal order under s. 808.03 (2). [Re Order effective July 1, 1978]
809.10 Note
Judicial Council Committee's Note, 1981: To facilitate the efficient administration of appeals by the court of appeals, sub. (1) (a) is amended to require that the notice of appeal state whether the appeal is in one of the types of cases specified in s. 752.31 (2). [Re Order effective Jan. 1, 1982]
809.10 Annotation
Appeal from judgment "and all intermediate orders" brought before the court only prior nonappealable orders under (4). Northridge Bank v. Community Eye Care Center, 91 W (2d) 298, 282 NW (2d) 632 (Ct. App. 1979).
809.10 Annotation
Where appeal is pending, matters not directly concerned with appeal but related to case are still properly within trial court's jurisdiction. In Matter of Trust Estate of Schaefer, 91 W (2d) 360, 283 NW (2d) 410 (Ct. App. 1979).
809.10 Annotation
Date of filing stamped on notice of appeal is not conclusive as to date of filing. Boston Old Colony Ins. v. Int'l. Rectifier Corp. 91 W (2d) 813, 284 NW (2d) 93 (1979).
809.10 Annotation
Court had jurisdiction to hear appeal from nonfinal order where judgment was entered later and notice of appeal sufficiently identified "what is appealed from". State v. Ascencio, 92 W (2d) 822, 285 NW (2d) 910 (Ct. App. 1979).
809.10 Annotation
Respondent was allowed to challenge trial court order denying motion for summary judgment despite failure to file notice of cross-appeal. Auric v. Continental Cas. Co. 111 W (2d) 507, 331 NW (2d) 325 (1983).
809.10 Annotation
Service of notice of appeal on opposing parties is not necessary to confer jurisdiction on court of appeals. Rhyner v. Sauk County, 118 W (2d) 324, 348 NW (2d) 588 (Ct. App. 1984).
809.10 Annotation
See note to 808.03, citing In re Marriage of Hengel v. Hengel, 120 W (2d) 522, 355 NW (2d) 846 (Ct. App. 1984).
809.10 Annotation
Failure to submit docketing fee within time specified for filing notice of appeal does not deprive court of jurisdiction; notice of appeal, not docketing fee, vests court with jurisdiction. Douglas v. Dewey, 147 W (2d) 328, 433 NW (2d) 243 (1989).
809.10 Annotation
Federal prohibition against stacking cross-appeals is not applicable under (2) (b); time limits under (1) (b) are jurisdictional and may not be extended. Estate of Donnell v. Milwaukee, 160 W (2d) 529, 466 NW (2d) 670 (Ct. App. 1991).
809.10 Annotation
A notice of appeal may not be filed by facsimile transmission. Only papers that do not require a filing fee may be filed by fax. Pratsch v. Pratsch, 201 W (2d) 491, 548 NW (2d) 852 (Ct. App. 1996).
809.10 Annotation
Mechanics of making an appeal in the court of appeals. Felsenthal, WBB October 1981.
809.10 Annotation
Appellate review: Choosing and shaping the proper standard. Leavell. WBB Apr. 1987.
809.10 Annotation
Changing standards of review. Leavell. WBB May 1987.
809.105
809.105
Appeals in proceedings related to parental consent prior to performance of abortion. 809.105(1)
(1)
Applicability. This section applies to the appeal of an order under
s. 48.375 (7) and supersedes all inconsistent provisions of this chapter.
809.105(2)
(2) Initiating an appeal. Only a minor may initiate an appeal under this section. The minor shall initiate the appeal by filing, or by a member of the clergy filing on the minor's behalf, a notice of appeal with the clerk of the trial court in which the order appealed from was entered and shall specify in the notice of appeal the order appealed from. At the same time, the minor or member of the clergy shall notify the court of appeals of the filing of the appeal by sending a copy of the notice of appeal to the clerk of the court of appeals. The clerk of the trial court shall assist the minor or member of the clergy in sending a copy of the notice of appeal to the clerk of the court of appeals. The minor may use the name "Jane Doe" instead of her name on the notice of appeal and all other papers filed with the court of appeals.
809.105(3)(a)(a)
Fee. No fee for filing an appeal in the court of appeals under this section may be required of a minor or of a member of the clergy who files an appeal under this section on behalf of the minor.
809.105(3)(b)
(b)
Forwarding to court of appeals. The clerk of the trial court shall forward to the court of appeals within 3 calendar days after the filing of the notice of appeal a copy of the notice of appeal and a copy of the trial court case record maintained as provided in
s. 59.40 (2) (b), using the name "Jane Doe" instead of the minor's name, and the record on appeal, assembled as provided in
sub. (4).
809.105(3)(c)
(c)
Filing in court of appeals. The clerk of the court of appeals shall file the appeal immediately upon receipt of the items specified in
par. (b).
809.105(3)(d)
(d)
Statement on transcript. A minor or member of the clergy may not be required to file a statement on transcript in an appeal under this section.
809.105(4)
(4) Record on appeal. The record in an appeal under this section consists of the following:
809.105(4)(c)
(c) The findings of fact, conclusions of law and final order of the trial court.
809.105(4)(d)
(d) Any other order made that is relevant to the appeal and the papers upon which that other order is based.
809.105(4)(e)
(e) Exhibits material to the appeal, whether or not received in evidence.
809.105(4)(f)
(f) Any other paper or exhibit filed in the trial court that the minor requests to have included in the record.
809.105(4)(j)
(j) If the trial court appointed a guardian ad litem under
s. 48.235 (1) (d), a letter written to the court of appeals by the guardian ad litem indicating his or her position on whether or not the minor is mature and well-informed enough to make the abortion decision on her own and whether or not the performance or inducement of an abortion is in the minor's best interests.
809.105(5)
(5) Transcript of reporter's notes. At the time that a minor or member of the clergy files a notice of appeal, the minor or member of the clergy shall make arrangements with the reporter for the preparation of a transcript of the reporter's notes of the proceedings under
s. 48.375 (7). The reporter shall file the transcript with the trial court within 2 calendar days after the notice of appeal is filed. The county of the court that held the proceeding under
s. 48.375 (7) shall pay the expense of transcript preparation under this subsection.
809.105(6)
(6) Voluntary dismissal. A minor may dismiss an appeal under this section by filing a notice of dismissal in the court of appeals.
809.105(7)
(7) Briefs. Briefs are not required to be filed in appeals under this section.
809.105(8)
(8) Assignment and advancement of cases. The court of appeals shall take cases appealed under this section in an order that ensures that a judgment is made within 4 calendar days after the appeal has been filed in the court of appeals. The time limit under this subsection may be extended with the consent of the minor and her counsel, if any, or the member of the clergy who initiated the appeal under this section, if any.
809.105(8m)
(8m) Oral argument. If the court of appeals determines that a case appealed under this section is to be submitted with oral argument, the oral argument shall be held in chambers or, on motion of the minor through her counsel or through the member of the clergy who filed the appeal under this section, if any, or on the court of appeals' own motion, by telephone, unless the minor through her counsel or the member of the clergy demands that the oral argument be held in open court.
809.105(9)
(9) Costs. The court of appeals may not assess costs against a minor or member of the clergy in an appeal under this section.
809.105(10)(a)(a) A judgment by the court of appeals under this section is effective immediately, without transmittal to the trial court, as an order either granting or denying the petition. If the court of appeals reverses a trial court order denying a petition under
s. 48.375 (7), the court of appeals shall immediately so notify the minor by personal service on her counsel or the member of the clergy who initiated the appeal under this section, if any, of a certified copy of the order of the court of appeals granting the minor's petition. If the court of appeals affirms the trial court order, it shall immediately so notify the minor by personal service on her counsel or the member of the clergy who initiated the appeal under this section, if any, of a copy of the order of the court of appeals denying the petition and shall also notify the minor by her counsel or the member of the clergy who initiated the appeal under this section on behalf of the minor, if any, that she may, under
sub. (11), file a petition for review with the supreme court under
s. 809.62. The court of appeals shall pay the expenses of service of notice under this subsection. The clerk of the court of appeals shall transmit to the trial court the judgment and opinion of the court of appeals and the record in the case filed under
sub. (4), within 31 days after the date that the judgment and opinion of the court of appeals are filed. If a petition for review is filed under
sub. (11), the transmittal shall be made within 31 days after the date that the supreme court rules on the petition for review.
