2003 Chapter 801

801.15 Annotation Service of an answer was timely under the terms of a courtesy agreement. Oostburg Bank v. United Savings, 130 Wis. 2d 4, 386 N.W.2d 53 (1986).

801.15 Annotation Time periods under s. 805.16 may not be enlarged by showing excusable neglect under s. 801.15 (2) (a). Brookhouse v. State Farm Mutual Insurance Co. 130 Wis. 2d 166, 387 N.W.2d 82 (Ct. App. 1986).

801.15 Annotation The trial court lost jurisdiction to decide motions after verdict by consecutively extending the time for its decision under sub. (2) (b). Ford Motor Co. v. Lyons, 137 Wis. 2d 397, 405 N.W.2d 354 (Ct. App. 1987).

801.15 Annotation Because a courtesy agreement was made after default, the court did not abuse its discretion by insisting on compliance with sub. (2) (a). Clark County v. B.T.U. Structures, 144 Wis. 2d 11, 422 N.W.2d 910 (Ct. App. 1988).

801.15 Annotation The trial court had discretion to allow a jury trial when fees under s. 814.61 (4) were not timely paid. Chitwood v. A. O. Smith Harvestore, 170 Wis. 2d 622, 489 N.W.2d 697 (Ct. App. 1992).

801.15 Annotation While clerical error is not always excusable, it is not as a matter of law inexcusable neglect. Sentry Insurance v. Royal Insurance Co. 196 Wis. 2d 907, 539 N.W.2d 911 (Ct. App. 1995), 94-3428.

801.15 Annotation Trial courts have discretion to shorten the 5 day notice requirement for motions. Schopper v. Gehring, 210 Wis. 2d 209, 565 N.W.2d 187 (Ct. App. 1997).

801.15 Annotation Sub. (2) (a) is applicable to excusable neglect by a trial judge. State v. Elliot, 203 Wis. 2d 95, 551 N.W.2d 850 (Ct. App. 1996).

801.15 Annotation Excusable neglect is conduct that might have been the act of a reasonably prudent person under the same circumstances. A court must look beyond the cause of the neglect to the interests of justice, considering both the need to afford litigants a day in court and to ensure prompt adjudication. Whether the dilatory party acted in good faith, whether the opposing party was prejudiced, and whether prompt remedial action took place are factors to consider. An attorney who relied on an oral courtesy agreement whose terms were not disputed and promptly filed for an extension acted with excusable neglect. Rutan v. Miller, 213 Wis. 2d 94, 570 N.W.2d 54 (Ct. App. 1997).

801.15 Annotation Under sub. (1) (b) the last day is included in determining time periods unless it is "a day the clerk of courts office is closed." Whether or not the day is a "holiday" under sub. (1) (a) is not relevant. Klingbeil v. Perschke, 228 Wis. 2d 421, 596 N.W.2d 488 (Ct. App. 1999).

801.15 Annotation A courtesy extension agreement is not required to be in writing, but a court may consider the lack of documentation in making a determination as to whether an agreement existed. Connor v. Connor, 2001 WI 49, 243 Wis. 2d 279, 627 N.W.2d 182, 99-0157.

801.15 Annotation The trial court erroneously exercised its discretion by entering default judgment without hearing offered testimony on the question of whether an oral courtesy agreement existed, and if so, what the agreement provided. Johnson Bank v. Brandon Apparel Group, Inc. 2001 WI App 159, 246 Wis. 2d 840, 632 N.W.2d 107.

801.15 Annotation The trial court court was not required to find excusable neglect for failing to file a timely answer due to a process server's failure to endorse and date the summons and complaint as required under s. 801.10 (2) when the failure to answer in a timely manner amounted to nothing more than carelessness and inattentiveness on the part of the parties involved. While prompt remedial action after the expiration of the statutory time limit is a material factor bearing on whether relief should be granted, it does not eliminate the requirement that a dilatory party demonstrate excusable neglect for its initial failure to meet the statutory deadline. Williams Corner Investors, LLC v. Areawide Cellular, LLC, 2004 WI App 27, 269 Wis. 2d 682, 676 N.W.2d 168, 03-0824.

801.15 Annotation Avoiding and obtaining relief from default judgments. Parlee, WBB April, 1985.

801.16 801.16  Filing.

801.16(1) (1) The filing of pleadings and other papers with the court as required by these statutes shall be made by filing them with the clerk of circuit court. The judge may require that the person filing the papers provide a copy to the judge.

801.16(2) (2) For papers that do not require a filing fee:

801.16(2)(a) (a) A court may adopt a local rule, if it is approved by the chief judge, that permits the filing of papers with the clerk of circuit court by facsimile transmission to a plain-paper facsimile machine at a telephone number designated by the court. To provide uniformity, any local rule shall specify a 15-page limit for a facsimile transmission, unless an exception is approved by the assigned judge or court commissioner on a case-by-case basis.

801.16(2)(b) (b) If no rule has been adopted under par. (a), the assigned judge or court commissioner may permit a party or attorney in a specific matter to file papers with the clerk of circuit court by facsimile transmission to a plain-paper facsimile machine at a telephone number designated by the assigned judge or court commissioner.

801.16(2)(c) (c) If the facsimile transmission exceeds 15 pages or is filed in the absence of a local rule, the party or attorney shall certify that the assigned judge or court commissioner has approved the facsimile transmission.

801.16(2)(d) (d) If papers are transmitted to a plain-paper facsimile machine of a noncourt agency, party, or company for the receipt, transmittal, and delivery to the clerk of circuit court, the clerk of circuit court shall accept the papers for filing only if the transmission complies with the local rule or has been approved by the assigned judge or court commissioner and certified by the party or attorney.

801.16(2)(e) (e) Facsimile papers are considered filed upon receipt by the clerk of circuit court and are the official record of the court and may not be substituted. No additional copies may be sent. The clerk of circuit court shall discard any duplicate papers subsequently received by the clerk of circuit court, assigned judge, or court commissioner.

801.16(2)(f) (f) Papers filed by facsimile transmission completed after regular business hours of the clerk of circuit court's office are considered filed the next business day.

801.16 History History: Sup. Ct. Order, 161 Wis. 2d xvii (1991); Sup. Ct. Order No. 94-11, 187 Wis. 2d xxiii; Sup. Ct. Order No. 00-09, 2001 WI 33, 241 Wis. 2d xix.

Effective date note Judicial Council Note, 1991: Sub. (2) clarifies that papers (other than those requiring a filing fee) may be filed by facsimile transmission to the judge or clerk, if a local court rule, or the judge in a specific matter, so permits. [Re Order eff. 7-1-91.]

801.16 Annotation A notice of appeal does not require a filing fee and may be filed by facsimile transmission under sub. (2). State v. Sorenson, 2000 WI 43, 234 Wis. 2d 648, 611 N.W.2d 240.

801.50 801.50  Venue in civil actions or special proceedings.

801.50(1) (1) A defect in venue shall not affect the validity of any order or judgment.

801.50(2) (2) Except as otherwise provided by statute, venue in civil actions or special proceedings shall be as follows:

801.50(2)(a) (a) In the county where the claim arose;

801.50(2)(b) (b) In the county where the real or tangible personal property, or some part thereof, which is the subject of the claim, is situated;

801.50(2)(c) (c) In the county where a defendant resides or does substantial business; or

801.50(2)(d) (d) If the provisions under par. (a) to (c) do not apply, then venue shall be in any county designated by the plaintiff.

801.50(3) (3) All actions in which the sole defendant is the state, any state board or commission or any state officer, employee or agent in an official capacity shall be venued in Dane County unless another venue is specifically authorized by law.

801.50(4) (4) Venue of an action seeking a remedy available by habeas corpus shall be in the county:

801.50(4)(a) (a) Where the plaintiff was convicted or sentenced if the action seeks relief from a judgment of conviction or sentence under which the plaintiff's liberty is restrained.

801.50(4)(b) (b) Where the liberty of the plaintiff is restrained if the action seeks relief concerning any other matter relating to a restraint on the liberty of the plaintiff.

801.50(5) (5) Venue of an action for certiorari to review a probation, extended supervision or parole revocation, a denial by a program review committee under s. 302.113 (9g) of a petition for modification of a bifurcated sentence, or a refusal of parole shall be the county in which the relator was last convicted of an offense for which the relator was on probation, extended supervision or parole or for which the relator is currently incarcerated.

801.50(5c) (5c) Venue of an action for certiorari brought by the department of corrections under s. 302.113 (9) (d) or 302.114 (9) (d) to review a decision to not revoke extended supervision shall be in the county in which the person on extended supervision was convicted of the offense for which he or she is on extended supervision.

801.50(5m) (5m) Venue of an action arising from a consumer credit transaction, as defined in s. 421.301 (10), shall be in any county specified in s. 421.401 (1).

801.50(5p) (5p) Venue of an environmental pollution action brought by a person who is not a resident of this state against a commission created under s. 200.23 shall be in the county which contains the 1st class city that is located wholly or partially within the applicable district created under s. 200.23.

801.50(5r) (5r) Venue of an action under s. 813.12 growing out of domestic abuse shall be in the county in which the cause of action arose, where the petitioner or the respondent resides or where the petitioner is temporarily living.

801.50(5s) (5s) Venue of an action under s. 813.122 or 813.125 shall be in the county in which the cause of action arose or where the petitioner or the respondent resides.

801.50(6) (6) Venue under this section may be changed under s. 801.52.

801.50 History History: 1983 a. 204, 228, 389, 538; 1985 a. 234, 291; 1987 a. 208; 1993 a. 318, 319; 1997 a. 283; 1999 a. 150 s. 672; 2001 a. 30 s. 108; 2001 a. 109.

801.50 Cross-reference Cross-reference: See s. 813.02 (4) for exception to sub. (1) as to venue.

801.50 Note Judicial Council Note, 1983: Sub. (1) is designed to separate questions of venue from questions of jurisdiction and competency. A defect in venue is not jurisdictional and does not affect the competence of the court. The cure for a defect in venue is to change the place of trial.

801.50 Annotation Sub. (2) liberalizes the present venue statute by providing the plaintiff with a broader range of initial venue choices. This subsection also deletes many of the archaic distinctions in the former statute.

801.50 Annotation The following list contains many, but not all, of the specialized venue provisions not found in chapter 801: s. 48.185 (children's code proceedings); s. 48.83 (adoption of minors); s. 51.45 (13) (n) (civil mental commitments); s. 767.65 (11) Revised (proceedings under the uniform reciprocal enforcement oF. Support act); s. 77.12 (forest croplands tax act); s. 111.60 (Wisconsin employment relations act); s. 144.73 (4) [now s. 291.95 (4)] (hazardous waste act); s. 185.44 (1) (cooperative contracts); s. 195.07 (railroad regulation act); s. 196.44 (3) (public utilities regulation act); s. 198.12 (2) (municipal power and water district act); s. 215.02 (5) (savings and loan association act); s. 227.16 (1) (administrative procedure act); s. 232.38 (solid waste recycling authority act); s. 234.22 (housing finance authority act); s. 345.31 (motor vehicle act); s. 421.401 (Wisconsin consumer act); s. 645.04 (1) (insurers rehabilitation and liquidation act); [s. 655.19 (health care liability and patients compensation)]; s. 701.14 (4) (living trusts); s. 752.21 (court of appeals); s. 753.065 (naturalization proceedings); s. 757.89 (Wisconsin judicial commission); s. 776.13 (annulment of corporate charters); s. 779.20 (log liens); s. 799.11 (small claims actions); s. 800.15 (municipal court appeals); s. 880.05 (guardianship actions); s. 882.03 (adult adoptions); s. 971.19 (criminal proceedings); s. 979.01 (inquests of the dead); s. 23.90 (conservation act); s. 45.50 (3) (soldiers and sailors civil relief); and s. 753.34 (5) (Menominee and Shawano counties).

801.50 Annotation Sub. (3) remains the same in substance.

801.50 Annotation Subs. (4) and (5) remain unchanged.

801.50 Annotation Sub. (6) recognizes the authority of the judge to change venue under s. 801.52. [Bill 324-S]

801.50 Annotation "Substantial business" under sub. (2) (c) is discussed. Enpro Assessment Corp. v. Enpro Plus, Inc. 171 Wis. 2d 542, 492 N.W.2d 325 (Ct. App. 1992).

801.50 Annotation "Where the liberty of the plaintiff is restrained" under sub. (4) (b) is the county where the plaintiff is confined. State ex rel. Frederick v. McCaugherty, 173 Wis. 2d 222, 496 N.W.2d 327 (Ct. App. 1992).

801.50 Annotation A certiorari proceeding to review a probation revocation must be heard in the circuit court of conviction, but it need not be heard by the same branch. Drow v. Schwartz, 225 Wis. 2d 362, 592 N.W.2d 623 (1999).

801.50 Annotation Wisconsin's revised venue statutes. Fullin, WBB September, 1984.

801.51 801.51  Challenges to improper venue. Any party may challenge venue, on the grounds of noncompliance with s. 801.50 or any other statute designating proper venue, by filing a motion for change of venue:

801.51(1) (1) At or before the time the party serves his or her first motion or responsive pleading in the action.

801.51(2) (2) After the time set forth in sub. (1), upon a showing that despite reasonable diligence, the party did not discover the grounds therefor at or before that time.

801.51 History History: 1983 a. 228.

801.51 Note Judicial Council Note, 1983: This section sets forth the procedure for challenging the plaintiff's initial choice of venue on the grounds that it fails to comply with the provisions of s. 801.50 or any other statute specifying proper venue. The former statute's 2-stage proceeding was unnecessary and tended to create confusion for unwary litigants. [Bill 324-S]

801.52 801.52  Discretionary change of venue. The court may at any time, upon its own motion, the motion of a party or the stipulation of the parties, change the venue to any county in the interest of justice or for the convenience of the parties or witnesses.

801.52 History History: 1983 a. 228.

801.52 Note Judicial Council Note, 1983: This section authorizes grounds for changing venue beyond the failure to comply with s. 801.50. It permits the court to apply traditional forum non conveniens principles to requests for discretionary change of venue. The court has discretion to change venue to any county in the state. [Bill 324-S]

801.53 801.53  Determination of motion for change of venue. Motions under ss. 801.51 and 801.52 shall be determined on the basis of proofs submitted by the parties unless the court orders a hearing or oral argument. Oral argument shall be heard by telephonic conference unless the court otherwise orders for cause shown.

801.53 History History: 1983 a. 228.

801.53 Note Judicial Council Note, 1983: The provisions of the prior statute are revised in new s. 801.51. Motions under s. 801.51 are rarely contested and usually decided on affidavit. As on other nonevidentiary motions, oral argument should, if desired, be heard by 3-way or conference telephone call. Motions under s. 801.52, while requiring a factual foundation, usually are based not on dispute of fact but on balance of equities. Unless good cause to the contrary is advanced, arguments should be heard by 3-way or telephonic conference call. [Bill 324-S]

801.56 801.56  Change of venue if judge disqualified by interest. When the judge is a party or interested in any action in the judge's court or is related to or has been of counsel for either party, the court or the presiding judge thereof shall, upon application of either party, and may without such application, change the place of trial or call in another judge as provided in s. 801.58. The fact that the judge is a taxpayer does not disqualify the judge.

801.56 History History: Sup. Ct. Order, 67 Wis. 2d 585, 757, 777 (1975); 1975 c. 218; Stats. 1975 s. 801.56.

801.58 801.58  Substitution of judge.

801.58(1) (1) Any party to a civil action or proceeding may file a written request, signed personally or by his or her attorney, with the clerk of courts for a substitution of a new judge for the judge assigned to the case. The written request shall be filed preceding the hearing of any preliminary contested matters and, if by the plaintiff, not later than 60 days after the summons and complaint are filed or, if by any other party, not later than 60 days after service of a summons and complaint upon that party. If a new judge is assigned to the trial of a case, a request for substitution must be made within 10 days of receipt of notice of assignment, provided that if the notice of assignment is received less than 10 days prior to trial, the request for substitution must be made within 24 hours of receipt of the notice and provided that if notification is received less than 24 hours prior to trial, the action shall proceed to trial only upon stipulation of the parties that the assigned judge may preside at the trial of the action. Upon filing the written request, the filing party shall forthwith mail a copy thereof to all parties to the action and to the named judge.

801.58(2) (2) When the clerk receives a request for substitution, the clerk shall immediately contact the judge whose substitution has been requested for a determination of whether the request was made timely and in proper form. If the request is found to be timely and in proper form, the judge named in the request has no further jurisdiction and the clerk shall request the assignment of another judge under s. 751.03. If the judge named in the substitution request finds that the request was not timely and in proper form, that determination may be reviewed by the chief judge of the judicial administrative district, or by the chief judge of an adjoining judicial administrative district if the judge named in the request is the chief judge, if the party who made the substitution request files a written request for review with the clerk no later than 10 days after the determination by the judge named in the request. If no determination is made by the judge named in the request within 7 days, the clerk shall refer the matter to the chief judge of the judicial administrative district or to the chief judge of an adjoining judicial administrative district, if the judge named in the request is the chief judge, for determination of whether the request was made timely and in proper form and reassignment as necessary. The newly assigned judge shall proceed under s. 802.10 (1).

801.58(3) (3) Except as provided in sub. (7), no party may file more than one such written request in any one action, nor may any single such request name more than one judge. For purposes of this subsection parties united in interest and pleading together shall be considered as a single party, but the consent of all such parties is not needed for the filing by one of such party of a written request.

801.58(4) (4) Upon the filing of an agreement signed by all parties to a civil action or proceeding, by the original judge for which a substitution of a new judge has been made, and by the new judge, the civil action or proceeding and pertinent records shall be transferred back to the original judge.

801.58(5) (5) In addition to other substitution of judge procedures, in probate matters a party may file a written request specifically stating the issue in a probate proceeding for which a request for substitution of a new judge has been made. The judge shall thereupon be substituted in relation to that issue but after resolution of the issue shall continue with the administration of the estate. If a person wishes to file a written request for substitution of a new judge for the entire proceeding, subs. (1) to (4) shall apply.

801.58(6) (6) 

801.58(6)(a) (a) In probate matters ss. 801.59 to 801.62 apply, except that upon the substitution of any judge, the case shall be referred to the register in probate, who shall request assignment of another judge under s. 751.03 to attend and hold court in such matter.

801.58(6)(b) (b) Ex parte orders, letters, bonds, petitions and affidavits may be presented to the assigned judge, by mail or in person, for signing or approving, wherever the judge may be holding court, who shall execute or approve the same and forthwith transmit the same to the attorney who presented it, for filing with the circuit court of the county where the records and files of the matter are kept.

801.58(7) (7) If upon an appeal from a judgment or order or upon a writ of error the appellate court orders a new trial or reverses or modifies the judgment or order as to any or all of the parties in a manner such that further proceedings in the trial court are necessary, any party may file a request under sub. (1) within 20 days after the filing of the remittitur in the trial court whether or not another request was filed prior to the time the appeal or writ of error was taken.

801.58 History History: 1971 c. 46, 138, 296; Sup. Ct. Order, 67 Wis. 2d 585, 757 (1975); Stats. 1975 s. 801.58; 1977 c. 135 ss. 7, 15, 16; 1977 c. 187 s. 135; Sup. Ct. Order, 82 Wis. 2d ix (1978); 1977 c. 449; 1979 c. 175 ss. 50, 53; 1981 c. 137; 1987 a. 68.

801.58 Note Judicial Council Note, 1977: Section 801.58 of the statutes has been changed in a number of significant ways. The statute states that a substitution of judge request in a civil action or proceeding is timely only if made before the hearing of a preliminary contested matter, codifying Pure Milk Products Coop. v. NFO, 64 Wis. 2d 241 (1974).

801.58 Annotation A new provision has been added to allow the parties to a criminal action or proceeding, the prosecuting attorney, and the original and the new judge to agree to have the matter referred back to the original judge. This will aid the administration of justice in those cases where it is advantageous for everyone concerned to have the original judge take back the matter. [Bill 74-S]

801.58 Note Judicial Council Committee's Note, 1977: Sub. (1) is amended to give a plaintiff 60 days from the time the summons and complaint are filed or a defendant or any added party 60 days after service of a summons and complaint upon them to request a substitution of a new judge, provided no preliminary contested matters have been argued by the requester. The previous time periods for requesting a substitution of judge (i.e., 10 days after the date of notice for a scheduling conference or 10 days after service of a standard scheduling order) are repealed as the use of such a conference or order is no longer mandatory under s. 802.10. [Re Order effective July 1, 1978]

801.58 Note Judicial Council Note, 1981: Sub. (2) has been revised to allow the clerk to refer the substitution request to the chief judge of the judicial administrative district when the judge whose substitution has been requested fails to determine within 7 days whether the request is timely made and in proper form.

801.58 Annotation Sub. (7) has been amended to clarify that the 20-day time period for filing a substitution request after an appellate remand commences upon the filing of the remittitur in the trial court. Rohl v. State, 97 Wis. 2d 514 (1980). [Bill 163-S]

801.58 Annotation A right can be waived by participation in preliminary motions in which the judge is allowed to receive evidence that of necessity is used and weighed in deciding ultimate issues. Pure Milk Products Coop. v. NFO, 64 Wis. 2d 241, 219 N.W.2d 564 (1974).

801.58 Annotation The Bacon-Bahr rule, which interprets this section to bar substitution in proceedings to modify support or custody orders, applies only to cases in which the judge has been previously involved. State ex rel. Tarney v. McCormack, 99 Wis. 2d 220, 298 N.W.2d 552 (1980).

801.58 Annotation A substitution of judge request may be filed with a deputy clerk. In Matter of Civil Contempt of Kroll, 101 Wis. 2d 296, 304 N.W.2d 175 (Ct. App. 1981).

801.58 Annotation An added party may request a substitution within 60 days of service if the added party has not actually participated in preliminary contested matters. City of La Crosse v. Jiracek Cos., Inc. 108 Wis. 2d 684, 324 N.W.2d 440 (Ct. App. 1982).