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 has been repealed.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 Note 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 431, 529 N.W.2d 225 (1995).
808.07 Annotation The Gudenschwager, 191 Wis. 2d 431 (1995), 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.
808.07 Annotation In some cases, executions may be stayed, tolling interest, and in other cases, a court may decline such a request for stay. There is no substantial conflict in these differing results. Estate of Matteson v. Matteson, 2008 WI 48, 309 Wis. 2d 311, 749 N.W.2d 557, 05-2607.
808.07 Annotation In determining whether to grant relief pending appeal, the court of appeals exercises its discretion. The court of appeals should explain its discretionary decision-making to ensure the soundness of that decision-making and to facilitate judicial review. In this case, the court of appeals erroneously exercised its discretion when the court denied the defendant's motion for relief pending appeal without explaining the reasoning for the discretionary denial decision. State v. Scott, 2018 WI 74, 382 Wis. 2d 476, 914 N.W.2d 141, 16-2017.
808.07 Annotation Involuntary medication orders are subject to an automatic stay pending appeal. On a motion to lift an automatic stay, the state must: 1) make a strong showing that it is likely to succeed on the merits of the appeal; 2) show that the defendant will not suffer irreparable harm if the stay is lifted; 3) show that no substantial harm will come to other interested parties if the stay is lifted; and 4) show that lifting the stay will do no harm to the public interest. State v. Scott, 2018 WI 74, 382 Wis. 2d 476, 914 N.W.2d 141, 16-2017.
808.07 Annotation When reviewing the likelihood of success on appeal in conducting a stay analysis, a circuit court must consider the standard of review, along with the possibility that appellate courts may reasonably disagree with its legal analysis. The probability of success that must be demonstrated is inversely proportional to the amount of irreparable injury the movant will suffer absent the stay. Thus, the greater the potential injury, the less a movant must prove in terms of success on appeal. Waity v. Lemahieu, 2022 WI 6, 400 Wis. 2d 356, 969 N.W.2d 263, 21-0802.
808.07 Annotation In conducting a stay analysis, courts consider whether the movant shows that no substantial harm will come to other interested parties. Courts consider the period of time that the case is on appeal, not any harm that could occur in the future. Courts must consider the extent of harm the non-movant will experience if a stay is entered, but the non-movant is ultimately successful in having the injunction affirmed and reinstated. Thus, the stay analysis is not a mere repetition of any harm analysis conducted by the circuit court when it originally issued an order granting relief, which may consider generally all future harms to the non-movant. Waity v. Lemahieu, 2022 WI 6, 400 Wis. 2d 356, 969 N.W.2d 263, 21-0802.
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. 801.18 (16), 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:
808.075(4)(a) (a) In a case under ch. 48:
808.075(4)(a)1. 1. Review of actions by a guardian under s. 48.023.
808.075(4)(a)2. 2. Review of nonsecure custody orders under s. 48.207.
808.075(4)(a)3. 3. Review of secure detention orders under s. 48.208 and secure detention status reviews under s. 48.209 (1) (e).
808.075(4)(a)4. 4. Hearing for child held in custody under s. 48.21 or an adult expectant mother of an unborn child held in custody under s. 48.213.
808.075(4)(a)5. 5. Hearing upon involuntary removal under s. 48.305.
808.075(4)(a)6. 6. Revision of dispositional order under s. 48.363.
808.075(4)(a)7. 7. Extension of dispositional order under s. 48.365, unless s. 48.368 applies.
808.075(4)(a)8. 8. Review of permanency plan under s. 48.38 (5).
808.075(4)(a)9. 9. Release of confidential information under s. 48.396 or 48.78.
808.075(4)(a)9m. 9m. Review of the conduct of a guardian under s. 48.9795 (10).
808.075(4)(a)10. 10. Revision of guardianship order under s. 48.977 (6).
808.075(4)(a)11. 11. Termination of guardianship under s. 48.977 (7) or 48.9795 (11), including removal of a guardian.
808.075(4)(a)12. 12. Rescission of a guardianship order under s. 48.978 (2) (L) 4., (m) 2. or (n) or (3) (d) 3. or 4., (j) 2. or 3. or (k) 2. or 3.
808.075(4)(a)13. 13. Appointment of a successor guardian under s. 48.9795 (8).
808.075(4)(a)14. 14. Order for visitation under s. 48.9795 (12).
808.075(4)(b) (b) In a case under ch. 51:
808.075(4)(b)1. 1. Disposition, modification and extension of commitment under s. 51.20 (13).
808.075(4)(b)2. 2. Reexamination of commitment under s. 51.20 (16).
808.075(4)(b)3. 3. Enforcement of patient rights under s. 51.61.
808.075(4)(b)4. 4. Commitment, conditional release, recommitment and discharge under s. 971.17 of a person found not guilty by reason of mental disease or defect.
808.075(4)(c) (c) In a case under ch. 55:
808.075(4)(c)1. 1. Protective placement review under s. 55.18, modification under s. 55.16, or termination under s. 55.17.
808.075(4)(c)2. 2. Hearing required upon transfer under s. 55.15.
808.075(4)(c)3. 3. Enforcement of patient's rights under s. 55.23.
808.075(4)(d) (d) In a case under ch. 767:
808.075(4)(d)1. 1. Revision of orders for legal custody or periods of physical placement under s. 767.41, 767.451, 767.461, or 767.481.
808.075(4)(d)2. 2. Issuance or modification of orders for visitation rights under s. 767.43.
808.075(4)(d)3. 3. Annual adjustment of child or family support under s. 767.553.
808.075(4)(d)4. 4. Revision of judgment or order for child support, maintenance payments or family support payments under s. 767.59 or 767.89.
808.075(4)(d)5. 5. Order for temporary maintenance, temporary child support or for suit money, counsel fees and disbursements in the appellate court under s. 767.273.
808.075(4)(d)6. 6. Property division, where the court has expressly or impliedly reserved jurisdiction, provided the court does not revise or modify its final division of property.
808.075(4)(d)7. 7. Vacation or modification of judgment under s. 767.35 (6).
808.075(4)(d)8. 8. Revocation of judgment under s. 767.35 (7).
808.075(4)(d)9. 9. Enforcement of payments under s. 767.77, 767.804 (3), 767.805 (4), or 767.89.
808.075(4)(d)10. 10. Enforcement of orders under s. 767.78, 767.804 (3), 767.805 (4), or 767.89.
808.075(4)(d)11. 11. Enforcement or modification of assignments under s. 767.513 or 767.75.
808.075(4)(d)12. 12. Enforcement or modification of account transfers under s. 767.76.
808.075(4)(d)13. 13. Determination of charges and issuance of repayment orders under s. 767.71.
808.075(4)(e) (e) In a case under chs. 701 or 853 to 879, any matter, unless the appellate court directs the trial court not to act on specific issues or the trial court declines to act because the matter directly affects the issues on appeal.
808.075(4)(f) (f) In a case under ch. 54:
808.075(4)(f)1. 1. Review a bond under s. 54.46 (4) or 54.852 (9).
808.075(4)(f)2. 2. Release of deposited funds under s. 54.46 (4) (b) 3.
808.075(4)(f)4. 4. Appointment of successor guardian under s. 54.54 (1).
808.075(4)(f)5. 5. Approval of guardian's exercise of marital property rights under s. 54.20 (2) (h).
808.075(4)(f)6. 6. Approval of management of property under s. 54.19 or 54.20.
808.075(4)(f)7. 7. Direction for use of estate for benefit of wards under s. 54.19 (4).
808.075(4)(f)8. 8. Examination of annual accounts and assets under ss. 54.62 and 54.66.
808.075(4)(f)9. 9. Removal of guardian under s. 54.68 (4) (d).
808.075(4)(f)10. 10. Determination of petitions for instructions to guardian.
808.075(4)(f)11. 11. Termination of guardianship under s. 54.64.
808.075(4)(f)12. 12. Restoration of specific legal rights under s. 54.64 (2) (c).
808.075(4)(f)13. 13. Authorization of purchase of a home for a ward under s. 54.852 (15) (a).
808.075(4)(fn) (fn) In a case under ch. 938:
808.075(4)(fn)2. 2. Review of nonsecure custody orders under s. 938.207.
808.075(4)(fn)3. 3. Review of secure detention orders under s. 938.208 and secure detention status reviews under s. 938.209 (1) (a) 5.
808.075(4)(fn)4. 4. Hearing for juvenile held in custody under s. 938.21.
808.075(4)(fn)5. 5. Hearing upon involuntary removal under s. 938.305.
808.075(4)(fn)6. 6. Revision of dispositional order under s. 938.363.
808.075(4)(fn)7. 7. Extension of dispositional order under s. 938.365, unless s. 938.368 applies.
808.075(4)(fn)8. 8. Review of permanency plan under s. 938.38 (5).
808.075(4)(fn)9. 9. Release of confidential information under s. 938.396 or 938.78.
808.075(4)(g) (g) In a criminal case:
808.075(4)(g)1. 1. Release on bond under s. 809.31 or 969.01 (2).
808.075(4)(g)2. 2. Modification or revocation of bond under s. 969.01 (2) (e) or 969.08.
808.075(4)(g)3. 3. Imposition of sentence upon revocation of probation under s. 973.10 (2) (a).
808.075(4)(g)4. 4. Determination of sentence credit under s. 973.155.
808.075(4)(g)5. 5. Modification of a condition of probation or extension of probationary term under s. 973.09 (3) (a).
808.075(4)(g)6. 6. Modification of sentence.
808.075(4)(g)7. 7. Commitment, conditional release, recommitment and discharge under s. 971.17 of a person found not guilty by reason of mental disease or defect.
808.075(4)(h) (h) Commitment, supervised release, recommitment, discharge, and postcommitment relief under s. 980.10, 2003 stats., or ss. 980.06, 980.08, 980.09 (4), and 980.101 of a person found to be a sexually violent person under ch. 980.
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2021-22 Wisconsin Statutes updated through 2023 Wis. Act 93 and through all Supreme Court and Controlled Substances Board Orders filed before and in effect on March 22, 2024. Published and certified under s. 35.18. Changes effective after March 22, 2024, are designated by NOTES. (Published 3-22-24)