808.03 Annotation
An appellate court has no jurisdiction to review the denial of a postconviction motion if there is no final written order denying the motion on file in the clerk of court's office. State v. Malone,
136 Wis. 2d 250,
401 N.W.2d 563 (1987).
808.03 Annotation
A criminal defendant's right to appeal continues after death, regardless of the cause of death. State v. McDonald,
144 Wis. 2d 531,
424 N.W.2d 411 (1988).
808.03 Annotation
A judgment resolving the merits of a 42 USC 1983 action is final and appealable under sub. (1) although the issues of attorney fees remains unresolved. ACLU v. Thompson,
155 Wis. 2d 442,
455 N.W.2d 268 (Ct. App. 1990).
808.03 Annotation
The circuit court's retained jurisdiction in board of review certiorari actions under s. 70.47 (13) does not affect the finality of an order for appeal purposes. Steenberg v. Town of Oakfield,
157 Wis. 2d 674,
461 N.W.2d 148 (Ct. App. 1990).
808.03 Annotation
An appeal of an oral revocation order under s. 343.305 (10) may not be taken under sub. (1). State v. Borowski,
164 Wis. 2d 730,
476 N.W.2d 316 (Ct. App. 1991).
808.03 Annotation
When an appeal is taken as a matter of right, only the final document need be reduced to writing. Nonfinal rulings need not be reduced to writing to be eligible for review under an appeal of a subsequent final order. Jacquart v. Jacquart,
183 Wis. 2d 372,
515 N.W.2d 539 (Ct. App. 1994).
808.03 Annotation
Like a judgment of foreclosure and sale in the case a mortgage, a judgment of strict foreclosure of a land contract is a final judgment that must be appealed from within the time required under s. 808.04. Hackman v. Behm,
207 Wis. 2d 437,
558 N.W.2d 905 (Ct. App. 1996),
95-3315.
808.03 Annotation
An order on the merits of an action is final for purposes of appeal even though a request for litigation expenses is pending. Laube v. City of Owen,
209 Wis. 2d 12,
561 N.W.2d 785 (Ct. App. 1997),
96-2717.
808.03 Annotation
A party may waive the right to appeal in a civil case if the party has caused or induced a judgment to be entered or has stipulated to the entry of judgment. By stipulating to the entry of a conditional judgment, a party could not obtain a mandatory appeal of an interlocutory order. Cascade Mountain, Inc. v. Capitol Indemnity Corp.
212 Wis. 2d 265,
569 N.W.2d 45 (Ct. App. 1997),
96-2562.
808.03 Annotation
Absconding from a juvenile treatment center was a rejection by the juvenile of the legitimate means afforded for challenging the court order and resulted in the forfeiture of the right to appeal. State v. Lamontae D.M.
223 Wis. 2d 503,
589 N.W.2d 415 (Ct. App. 1998),
98-1700.
808.03 Annotation
The event that triggers the appeal period for a traffic regulation case is the recording of the disposition in the circuit court docket and not the entry of a separate judgment or order in the office of the clerk of circuit court. City of Sheboygan v. Flores,
229 Wis. 2d 242,
598 N.W.2d 307 (Ct. App. 1999),
99-0954.
808.03 Annotation
The court of appeals shall grant all petitions for interlocutory appeal arising from a circuit court summary judgment order denying a state official's claim of qualified immunity under 42 USC 1983 if the order is based on an issue of law. Whether to grant such a petition is discretionary when it arises from a motion to dismiss. Powell v. Cooper, 2001 WI 10,
241 Wis. 2d 153,
622 N.W.2d 265,
98-0012.
808.03 Annotation
In the family law context, an order resolving the merits of a child support dispute, but not an attorney's fee issue, is final within the meaning of sub. (1). Campbell v. Campbell, 2003 WI App 8,
259 Wis. 2d 676,
659 N.W.2d 106,
02-0426.
808.03 Annotation
A circuit court order is a final order when: 1) it disposes of the entire matter in litigation under substantive law, and 2) the circuit court considered it to be the last document it would enter in the litigation. Contardi v. American Family Insurance Co. 2004 WI App 104,
273 Wis. 2d 509,
684 N.W.2d 139,
03-2284.
808.03 Annotation
When an order or a judgment is entered that disposes of all of the substantive issues in the litigation, as to one or more parties, as a matter of law, the circuit court intended it to be the final document for purposes of appeal, notwithstanding the label it bears or subsequent actions taken by the circuit court. If an order for judgment meets this criterion, it is a final order. Any historic distinction between an order and a judgment is not dispositive. Harder v. Pfitzinger, 2004 WI 102,
274 Wis. 2d 324,
682 N.W.2d 398,
03-1817.
808.03 Annotation
An order granting a plea withdrawal is not final because it plainly anticipates further proceedings in the criminal case. Accordingly, the state was not obligated to file an appeal within the 45-day time period and its failure to do so was not waiver. State v. Williams, 2005 WI App 221,
287 Wis. 2d 748,
706 N.W.2d 355,
04-1985.
808.03 Annotation
The supreme court could not order the filing of an amended complaint asserting additional theories of liability in its remand when it elected to specifically advise that contract and warranty remedies were available although contract and warranty claims were not a subject of the order on appeal. However, the opinion language provided sufficient guidance to the appellant that if it chose to pursue contract and warranty claims it was permitted to do so. The trial court retained authority under sub. (3) to grant a motion to reopen to consider the new theories and, in fact, should have granted the motion to reopen. Tietsworth v. Harley-Davidson, Inc. 2006 WI App 5,
288 Wis. 2d 680,
709 N.W.2d 901,
04-2655.
808.03 Annotation
Wisconsin Court of Appeals Appellate Jurisdiction. Klein and Leavell. Wis. Law. Sept. 1991.
808.03 Annotation
Interlocutory Appeals in Wisconsin. Towers, Arnold, Tess-Mattner & Levenson. Wis. Law. July 1993.
808.03 Annotation
Understanding the New Rules of Appellate Procedure. Stephens. Wis. Law. July 2001.
808.04
808.04
Time for appeal to the court of appeals. 808.04(1)
(1)
Initiating an appeal. An appeal to the court of appeals must be initiated within 45 days of entry of a final judgment or order appealed from if written notice of the entry of a final judgment or order is given within 21 days of the final judgment or order as provided in
s. 806.06 (5), or within 90 days of entry if notice is not given, except as provided in this section or otherwise expressly provided by law. Time limits for seeking review of a nonfinal judgment or order are established in
s. 809.50.
808.04(1m)
(1m) An appeal by a record subject under
s. 19.356 shall be initiated within 20 days after the date of entry of the judgment or order appealed from.
808.04(2)
(2) An appeal under
s. 227.60 or
799.445 shall be initiated within 15 days after entry of judgment or order appealed from.
808.04(3)
(3) Except as provided in
subs. (4) and
(7), an appeal in a criminal case or a case under
ch. 48,
51,
55,
938, or
980 shall be initiated within the time period specified in
s. 809.30.
808.04(4)
(4) Except as provided in
sub. (7m), an appeal by the state in either a criminal case under
s. 974.05 or a case under
ch. 48,
938, or
980 shall be initiated within 45 days of entry of the judgment or order appealed from.
808.04(6)
(6) When a party to an action or special proceeding dies during the period allowed for appeal, the time to appeal is the time permitted by law or 120 days after the party's death, whichever is later. If no personal representative qualifies within 60 days after the party's death, any appellant may have a personal representative appointed under
s. 856.07 (2).
808.04(7)
(7) An appeal by a party other than the state from a judgment or order granting adoption shall be initiated by filing the notice required by
s. 809.30 (2) (b) within 40 days after the date of entry of the judgment or order appealed from. Notwithstanding
s. 809.82 (2) (a), this time period may not be enlarged.
808.04(7m)
(7m) An appeal from a judgment or order terminating parental rights or denying termination of parental rights shall be initiated by filing the notice required by
s. 809.107 (2) within 30 days after the date of entry of the judgment or order appealed from. Notwithstanding
s. 809.82 (2) (a), this time period may not be enlarged unless the judgment or order was entered as a result of a petition under
s. 48.415 that was filed by a representative of the public under
s. 48.09.
808.04(8)
(8) If the record discloses that the judgment or order appealed from was entered after the notice of appeal or intent to appeal was filed, the notice shall be treated as filed after that entry and on the day of the entry.
808.04 History
History: 1977 c. 187;
1979 c. 32 s.
92 (9), (14);
1979 c. 89,
221;
1981 c. 152;
1981 c. 314 ss.
130,
146;
1983 a. 183,
219;
1983 a. 491 s.
23;
1985 a. 182 s.
57; Sup. Ct. Order, 130 Wis. 2d xi, xix (1986); Sup. Ct. Order, 136 Wis. 2d xxv (1987);
1989 a. 56 s.
259;
1989 a. 192;
1991 a. 39; Sup. Ct. Order, 168 Wis. 2d xix (1992);
1993 a. 395;
1995 a. 77,
275;
1997 a. 133; Sup. Ct. Order No.
00-02, 2001 WI 39, 242 Wis. 2d xxvii;
2003 a. 47;
2005 a. 293,
434.
808.04 Note
NOTE: 2003 Wis. Act 47, which affects this section, contains extensive explanatory notes.
808.04 Cross-reference
Cross-reference: See s.
809.50 for time to file permissive appeals.
808.04 Note
Judicial Council Note, 1983: Sub. (2) requires expedited initiation of appeals in recall and eviction cases as well as cases in which the validity of a state law is attacked in federal district court. Sub. (3) references the appeal deadline for criminal, juvenile, mental commitment and protective placement appeals. Sub. (4) references the appeal deadline for appeals by the state in criminal and children's code cases. [Bill 151-S]
Effective date note
Judicial Council Note, 1986: The amendment to sub. (1) clarifies the time limit for notice of entry by cross-referencing s. 806.06 (5). [Re Order eff. 7-1-86]
Effective date note
Judicial Council Note, 1986: Subs. (3) and (4) are amended by removing references to a repealed statute. Sub. (7) requires a party other than the state to commence an appeal from a judgment or order terminating parental rights or granting an adoption by filing notice of intent to pursue relief in the trial court within 40 days after entry. It also prohibits enlargement of this time by the court of appeals. [Re Order eff. 7-1-87]
808.04 Note
Judicial Council Note, 1992: Subsection (8) is analogous to Rule (4) (a) (2) of the Federal Rules of Appellate Procedure. It is intended to avoid the delay, confusion and prejudice which can result from dismissing appeals solely because they are filed before the judgment or order appealed from is entered. Appeals from judgments or orders which have not been entered are still dismissable. [Re Order effective July 1, 1992]
808.04 Note
Judicial Council Note, 2001: The word "final" has been inserted before "judgment or order" in sub. (1). The amendment specifies that the 45- or 90-day time limit applies in appeals from final orders and the 14-day time limit in s. 809.50 applies to appeals from nonfinal orders. [Re Order No. 00-02 effective July 1, 2001]
808.04 Annotation
Notice under sub. (1) may not be given before judgment is entered. Sub-Zero Freezer Co. v. Manhattan Life Insurance Co.
90 Wis. 2d 76,
279 N.W.2d 492 (Ct. App. 1979).
808.04 Annotation
When a written notice of entry of judgment showed the incorrect date of entry, the time to appeal was not shortened under sub. (1). Mock v. Czemierys,
113 Wis. 2d 207,
336 N.W.2d 188 (Ct. App. 1983).
808.04 Annotation
To shorten the appeal period under sub. (1), a formal, captioned, and signed notice of entry of judgment stating the date of entry must be filed and served on an opposing party within 21 days of the entry date. Soquet v. Soquet,
117 Wis. 2d 553,
345 N.W.2d 401 (1984).
808.04 Annotation
The date stamped on the judgment did not control as to the date of actual filing. Matter of Estate of Ristau,
144 Wis. 2d 421,
424 N.W.2d 203 (1988).
808.04 Annotation
A summary contempt proceeding is not "prosecuted by the state" and appeal is pursuant to sub. (1). Matter of Contempt in State v. Simmons,
150 Wis. 2d 178,
441 N.W.2d 308 (Ct. App. 1989).
808.04 Annotation
Under sub. (1), notice of entry of judgment must be given within 21 days of the entry of the judgment, not of its signing, consistent with s. 806.06 (5). Linnmar, Inc. v. First Enterprises,
161 Wis. 2d 706,
468 N.W.2d 753 (Ct. App. 1991).
808.04 Annotation
If a motion for reconsideration is filed under s. 805.17 (3), the 45-day time for appeal under sub. (1) applies beginning upon disposal of the motion. Salzman v. DNR,
168 Wis. 2d 523,
484 N.W.2d 337 (Ct. App. 1992).
808.04 Annotation
Strict compliance with the procedures for providing notice of entry of judgment is required. Notice of entry of judgment is ineffective if it was mailed to an incorrect address. Nichols v. Conlin,
198 Wis. 2d 287,
542 N.W.2d 194 (Ct. App. 1995),
95-2776.
808.04 Annotation
Proceedings under ch. 980 are civil and not criminal. The time limits under sub. (1), and not sub. (5), apply. State v. Brunette,
212 Wis. 2d 139,
567 N.W.2d 647 (Ct. App. 1997),
96-2351.
808.04 Annotation
When a judge normally presides in one county but is assigned by substitution to a case filed in another county, the filing and entry for appeal purposes occur when the document comes into the possession of the clerk of court in the county in which the case was commenced. State v. Williams,
230 Wis. 2d 50,
601 N.W.2d 838 (Ct. App. 1999),
98-3338.
808.04 Annotation
Sub. (8) is applicable to appeals under s. 66.0703 as the result of the application of s. 801.02 (2), which makes chs. 801 to 847 applicable in all special proceedings. Mayek v. Cloverleaf Lakes Sanitary District #1, 2000 WI App 182,
238 Wis. 2d 261,
617 N.W.2d 235,
99-2895.
808.04 Annotation
An attorney who is sanctioned by the circuit court for misconduct in a client's case must file his or her own notice of appeal in order to challenge the sanction and may not intervene in the client's appeal if the notice of appeal deadline has been missed. Absent the attorney's filing of a notice of appeal, the court of appeals lacks jurisdiction to consider a challenge to a sanction for the attorney's misconduct. Ziebell v. Ziebell, 2003 WI App 127,
265 Wis. 2d 664,
666 N.W.2d 107,
02-2552.
808.04 Annotation
A circuit court order is a final order when: 1) it disposes of the entire matter in litigation under substantive law, and 2) the circuit court considered it to be the last document it would enter in the litigation. Contardi v. American Family Insurance Co. 2004 WI App 104,
273 Wis. 2d 509,
684 N.W.2d 139,
03-2284.
808.05
808.05
Bypass. The supreme court may take jurisdiction of an appeal or any other proceeding pending in the court of appeals if:
808.05(1)
(1) It grants direct review upon a petition to bypass filed by a party;
808.05(2)
(2) It grants direct review upon certification from the court of appeals prior to the court of appeals hearing and deciding the matter; or
808.05(3)
(3) It, on its own motion, decides to review the matter directly.
808.05 History
History: 1977 c. 187.
808.07
808.07
Relief pending appeal. 808.07(1)
(1)
Effect of appeal. An appeal does not stay the execution or enforcement of the judgment or order appealed from except as provided in this section or as otherwise expressly provided by law.
808.07(2)
(2) Authority of a court to grant relief pending appeal. 808.07(2)(a)(a) During the pendency of an appeal, a trial court or an appellate court may:
808.07(2)(a)1.
1. Stay execution or enforcement of a judgment or order;
808.07(2)(a)3.
3. Make any order appropriate to preserve the existing state of affairs or the effectiveness of the judgment subsequently to be entered.
808.07(2)(am)
(am) During the pendency of an appeal, the trial court may hear and determine a motion filed under
s. 806.07.
808.07(2)(b)
(b) Except as provided in
s. 655.27 (5) (a) 3., relief under this subsection may be conditioned upon the filing of an undertaking in the trial court.
808.07(2m)(a)(a) During the pendency of an appeal of a judgment in any civil action, the court shall set the amount of the undertaking to be furnished by all appellants collectively in order to stay the execution of the judgment during appellate review, but the undertaking shall not exceed $100,000,000.
808.07(2m)(b)
(b) Notwithstanding
par. (a), if an appellee proves by a preponderance of the evidence that an appellant is dissipating assets outside the ordinary course of business to avoid payment of a judgment, a court may enter any order necessary to protect the appellee and may require the appellant to post a bond in an amount not to exceed the amount of the judgment.
808.07(3)
(3) Undertaking for costs. An undertaking for costs is not required unless specifically required by statute, or, except as provided in
s. 655.27 (5) (a) 3., by the trial court acting in its discretion.
808.07(4)
(4) Proceedings against a surety. A surety on an undertaking is subject to the jurisdiction of the trial court and irrevocably appoints the clerk of that court as the surety's agent for service of any papers affecting his or her liability on the undertaking. A person may seek to enforce the surety's liability by filing a motion in the action or proceeding in the trial court in which the undertaking was filed.
808.07(5)
(5) Public officials. A person or agency suing or being sued in an official public capacity is not required to execute an undertaking as a condition for relief under this section unless, except as provided in
s. 655.27 (5) (a) 3., required by the court in its discretion.
808.07(6)
(6) Sureties on undertakings. A surety shall file with the undertaking an affidavit that the surety has a net worth in property within this state not exempt from execution which exceeds the amount of the undertaking, except as provided in
s. 632.17 (2). The respondent may by motion object to the sufficiency of a surety within 14 days after service of a copy of the undertaking.
808.07 History
History: 1977 c. 187;
1979 c. 32;
1979 c. 110 s.
60 (9);
1983 a. 158,
219; Sup. Ct. Order, 130 Wis. 2d xix (1986);
1985 a. 332; Sup. Ct. Order No.
00-02, 2001 WI 39, 242 Wis. 2d xxvii;
2003 a. 105.
Effective date note
Judicial Council Note, 1986: Sub. (2) (am) carries forward the authority of trial courts to hear and determine motions for relief from judgment during the pendency of an appeal. Authority of the appellate court to hear and determine such motions under prior sub. (2) (a) 4. has been repealed. [Re Order eff. 7-1-86]
808.07 Note
Judicial Council Note, 2001: Sub. (6) is the first of fifteen statutes scattered throughout the rules in which a 10-day deadline is being changed to a 14-day deadline. Also 7-day deadlines are being changed to 11-day deadlines. Many of the current deadlines in ch. 809 are either 7 or 10 days and are affected by s. 801.15 (1) (b), which excludes "Saturdays, Sundays and holidays" from time periods "less than 11 days." Additionally, many time periods in ch. 809 run from the service of a document, and under s. 801.15 (5) (a), when a document is served by mail, 3 days are added to the prescribed period. The interplay of s. 801.15 and ch. 809 causes many of the time periods in ch. 809 to be substantially longer than the number of days specified in the Rules. The varying time periods have made calculation of the court's deadlines difficult.
808.07 Annotation
The proposed amendment of all of the 7-day or 10-day deadlines to 11 and 14 days, respectively, will remove the impact of s. 801.15 (1) (b) on the Rules of Appellate Procedure. However, there will be little adverse impact on the time actually given to parties. The proposed change will greatly facilitate the court's calculation of deadlines. If circumstances demand a different time period, the court may set an appropriate deadline under s. 809.82 (2) (a). [Re Order No. 00-02 effective July 1, 2001]
808.07 Annotation
A postjudgment order of the circuit court denying a motion under sub. (2) (a) 4. [now sub. (2) (am)] is not reviewable on appeal from the judgment. Chicago & North Western Railroad. v. LIRC,
91 Wis. 2d 462,
283 N.W.2d 603 (Ct. App. 1979).
808.07 Annotation
Under sub. (1) and s. 808.075 (1), a circuit court has authority to confirm a sheriff's sale even though an appeal of the judgment of foreclosure and sale is pending. Community National Bank v. O'Neill,
157 Wis. 2d 244,
458 N.W.2d 385 (Ct. App. 1990).
808.07 Annotation
A stay pending appeal is appropriate when the moving party: 1) makes a strong showing that it is likely to prevail on the appeal; 2) shows that unless the stay is granted it will suffer irreparable harm; 3) shows that there will be no substantial harm to the other parties; and 4) shows that there will be no harm to the public interest. State v. Gudenschwager,
191 Wis. 2d 432,
529 N.W.2d 225 (1995).
808.07 Annotation
The Gudenschwager factors do not provide adequate guidance for granting a stay pending appeal when the judgment sought to be stayed is solely a money judgment. The court must consider: 1) the likelihood of success on appeal; 2) the need to ensure collectibility of the judgment if the appeal is unsuccessful; 3) whether the appellant, if successful, will be able to recover; and 4) the harm to the respondent if the judgment is not paid until the completion of an unsuccessful appeal. Scullion v. Wisconsin Power & Light Co. 2000 WI App 120,
237 Wis. 2d 498,
614 N.W.2d 565,
98-3221.
808.07 Annotation
Even if a statutory lis pendens under s. 840.10 is dissolved, common law lis pendens applies and a purchaser who is a party to the relevant litigation takes the property subject to the outcome of the litigation, including appeals. This section does not affect that result. Gaugert v. Duve, 2001 WI 83,
244 Wis. 2d 691,
628 N.W.2d 861,
98-3004.
808.075
808.075
Permitted court actions pending appeal. 808.075(1)(1) In any case, whether or not an appeal is pending, the circuit court may act under
ss. 804.02 (2),
805.15,
805.16,
805.17 (3),
806.07,
806.08,
806.15 (2),
806.24 (4),
808.07 (1) and
(2) and
809.12.
808.075(2)
(2) In a case appealed under
s. 809.30, the circuit court retains the power to act on all issues until the notice of appeal has been filed with the clerk of the circuit court, except that the circuit court may not act upon any motion to extend a time limit that is specified in
s. 809.30. Thereafter, the circuit court may act only as provided in
subs. (1) and
(4).
808.075(3)
(3) In a case not appealed under
s. 809.30, the circuit court retains the power to act on all issues until the record has been transmitted to the court of appeals. Thereafter, the circuit court may act only as provided in
subs. (1) and
(4).
808.075(4)
(4) The circuit court may act as to the following despite the pendency of an appeal:
