805.16 Annotation
Failure to present timely postverdict motions doesn't deprive court of appeals of jurisdiction to review judgment. Hartford Ins. Co. v. Wales, 138 W (2d) 508, 406 NW (2d) 426 (1987).
805.16 Annotation
Once trial court loses authority to set aside verdict under this section by failing to act within 90 days, it cannot achieve same result by vacating judgment under 806.07 (1) (h). Manly v. State Farm Fire and Cas. Co., 139 W (2d) 249, 407 NW (2d) 306 (Ct. App. 1987).
805.16 Annotation
Trial court not competent to consider (1) motions where movant fails to timely file motions and fails to obtain extension before expiration of 20 day period. Ahrens-Cadillac Olds v. Belongia, 151 W (2d) 763, 445 NW (2d) 744 (Ct. App. 1989).
805.16 Annotation
Trial court actions under 805.16 permitted pending appeal under 808.075 are subject to (1) time limits. Schmidt v. Smith, 162 W (2d) 363, 469 NW (2d) 855 (Ct. App. 1991).
805.16 Annotation
This section applies to trial-related motions. An award of attorney fees is not trial-related. Gorton v. American Cyanamid Co. 194 W (2d) 203, 533 NW (2d) 746 (1995).
805.17
805.17
Trial to the court. 805.17(1)(1)
Motion at close of plaintiff's evidence. After the plaintiff, in an action tried by the court without a jury, has completed the presentation of his or her evidence, the defendant, without waiving his or her right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. The court as trier of the facts may then determine them and render judgment against the plaintiff on that ground or may decline to render any judgment until the close of all the evidence. If the court renders judgment on the merits against the plaintiff, the court shall make findings as provided in
sub. (2). Unless the court in its order for dismissal otherwise specifies, a dismissal under this section operates as an adjudication upon the merits.
805.17(2)
(2) Effect. In all actions tried upon the facts without a jury or with an advisory jury, the court shall find the ultimate facts and state separately its conclusions of law thereon. The court shall either file its findings and conclusions prior to or concurrent with rendering judgment, state them orally on the record following the close of evidence or set them forth in an opinion or memorandum of decision filed by the court. In granting or refusing interlocutory injunctions the court shall similarly set forth the findings of fact and conclusions of law which constitute the grounds of its action. Requests for findings are not necessary for purposes of review. Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses. The findings of a referee may be adopted in whole or part as the findings of the court. If an opinion or memorandum of decision is filed, it will be sufficient if the findings of ultimate fact and conclusions of law appear therein. If the court directs a party to submit proposed findings and conclusions, the party shall serve the proposed findings and conclusions on all other parties not later than the time of submission to the court. The findings and conclusions or memorandum of decision shall be made as soon as practicable and in no event more than 60 days after the cause has been submitted in final form.
805.17(3)
(3) Reconsideration motions. Upon its own motion or the motion of a party made not later than 20 days after entry of judgment, the court may amend its findings or conclusions or make additional findings or conclusions and may amend the judgment accordingly. The motion may be made with a motion for a new trial. If the court amends the judgment, the time for initiating an appeal commences upon entry of the amended judgment. If the court denies a motion filed under this subsection, the time for initiating an appeal from the judgment commences when the court denies the motion on the record or when an order denying the motion is entered, whichever occurs first. If within 90 days after entry of judgment the court does not decide a motion filed under this subsection on the record or the judge, or the clerk at the judge's written direction, does not sign an order denying the motion, the motion is considered denied and the time for initiating an appeal from the judgment commences 90 days after entry of judgment.
805.17(4)
(4) Appeal. In actions tried by the court without a jury, the question of the sufficiency of the evidence to support the findings may be raised on appeal whether or not the party raising the question has objected in the trial court to such findings or moved for new trial.
805.17 History
History: Sup. Ct. Order, 67 W (2d) 585, 712 (1975); Sup. Ct. Order, 73 W (2d) xxxi (1976); Sup. Ct. Order, 107 W (2d) xi (1982); Sup Ct. Order, 130 W (2d) xi (1986); Sup. Ct. Order, 160 W (2d) xiii (1991);
1993 a. 486.
805.17 Note
Judicial Council Committee's Note, 1976: Sub. (1) is based on the language in Federal Rule 41b, and governs how a court as the trier of the facts handles a motion by a defendant for dismissal after the plaintiff has completed the presentation of his evidence. This adoption of the Federal Rule was the approach taken by the Wisconsin Supreme Court in the case of Household Utilities, Inc. v. Andrews Co., 71 Wis. 2nd 17 (1976). [Re Order effective Jan. 1, 1977]
805.17 Note
Judicial Council Note, 1982: Sub. (2) has been amended to allow the filing of the findings and conclusions concurrent with the rendering of the judgment. The changes are intended to eliminate doubts as to the propriety of combining the findings, conclusions and judgment in a single document, simplifying paperwork, minimizing storage space requirements and reducing the likelihood of errors. [Re Order effective July 1, 1982]
Effective date note
Judicial Council Note, 1986: Sub. (2) is amended to permit the court to state the findings of fact and conclusions of law on the record in open court, in lieu of filing them. The amendment conforms to the practice authorized under Rule 52 (a), F.R.C.P. [Re Order eff. 7-1-86]
Effective date note
Judicial Council Note, 1991. This section permits motions for reconsideration to be made within 20 days after entry of judgment in actions tried to the court. Such motions are deemed denied if not decided within 90 days after entry of judgment. [Re Order eff. 7-1-91]
805.17 Annotation
See note to 806.07, citing In Matter of Estate of Smith, 82 W (2d) 667, 264 NW (2d) 239.
805.17 Annotation
Failure to bring motion under (3) to correct manifest error constitutes waiver of right to have issue considered on appeal. Marriage of Schinner v. Schinner, 143 W (2d) 81, 420 NW (2d) 381 (Ct. App. 1988).
805.17 Annotation
Where motion is filed under (3), forty-five day time for appeal under 808.04 (1) applies beginning upon disposal of the motion. Salzman v. DNR, 168 W (2d) 523, 484 NW (2d) 337 (Ct. App. 1992).
805.17 Annotation
In trial to the court, the court may not base its decision on affidavits submitted in support of a summary judgment. Proof offered in support of summary judgment is for determining if an issue of fact exists; when one does, summary judgment proof gives way to trial proof. Berna-Mork v. Jones, 173 W (2d) 733, 496 NW (2d) 637 (Ct. App. 1992).
805.17 Annotation
Sub. (3) modifies the deadline for filing appeals only on reconsideration motions after trials to the court. Continental Cas. Co. v. Milw. Metro. Sewerage Dist. 175 W (2d) 527, 499 NW (2d) 282 (Ct. App. 1993).
805.17 Annotation
Reconsideration assumes a question which has been previously considered. If a party has not appeared and made arguments, the court has not considered the party's arguments in the first instance and reconsideration is improper. Matter of Estate of O"Neill, 186 W (2d) 229, 519 NW (2d) 769 (Ct. App. 1994).
805.18
805.18
Mistakes and omissions; harmless error. 805.18(1)(1) The court shall, in every stage of an action, disregard any error or defect in the pleadings or proceedings which shall not affect the substantial rights of the adverse party.
805.18(2)
(2) No judgment shall be reversed or set aside or new trial granted in any action or proceeding on the ground of drawing, selection or misdirection of jury, or the improper admission of evidence, or for error as to any matter of pleading or procedure, unless in the opinion of the court to which the application is made, after an examination of the entire action or proceeding, it shall appear that the error complained of has affected the substantial rights of the party seeking to reverse or set aside the judgment, or to secure a new trial.
805.18 History
History: Sup. Ct. Order, 67 W (2d) 585, 714 (1975).
805.18 Annotation
Where defective summons does not prejudice defendant, non-compliance with 801.09 (2) (a) is not jurisdictional error. Canadian Pac. Ltd. v. Omark-Prentice Hydraulics, 86 W (2d) 369, 272 NW (2d) 407 (Ct. App. 1978).
805.18 Annotation
See note to 972.10, citing State v. Lehman, 108 W (2d) 291, 321 NW (2d) 212 (1982).
805.18 Annotation
See note to Art. I, sec. 7, citing State v. Chosa, 108 W (2d) 392, 321 NW (2d) 280 (1982).
805.18 Annotation
See note to 903.03, citing State v. Dyess, 124 W (2d) 525, 370 NW (2d) 222 (1985).
805.18 Annotation
See note to 343.305, citing State v. Bolstad, 124 W (2d) 576, 370 NW (2d) 257 (1985).
