It is not error for the trial court to fail to instruct sua sponte on a lesser included offense. The trial court should not interfere with the parties' trial strategy. State v. Myers, 158 Wis. 2d 356
, 461 N.W.2d 777
Instructional rulings are to be made at the close of the evidence. A party is not entitled to a mid-trial advisory ruling on whether an instruction will be given. Such a ruling, if given, is nonbinding and not subject to appeal. State v. Sohn, 193 Wis. 2d 346
, 535 N.W.2d 1
(Ct. App. 1995).
If an attorney disagrees with an instruction that a judge decides to give during an off-the-record conference, the attorney must object to the instruction on the record to preserve the issue for appeal. Steinberg v. Jensen, 204 Wis. 2d 115
, 553 N.W.2d 820
(Ct. App. 1996).
Appellate courts have no power to reach waived issues concerning unobjected to jury instructions. State v. Ward, 228 Wis. 2d 301
, 596 N.W.2d 887
(Ct. App. 1999).
Motions challenging sufficiency of evidence; motions after verdict. 805.14(1)
Test of sufficiency of evidence.
No motion challenging the sufficiency of the evidence as a matter of law to support a verdict, or an answer in a verdict, shall be granted unless the court is satisfied that, considering all credible evidence and reasonable inferences therefrom in the light most favorable to the party against whom the motion is made, there is no credible evidence to sustain a finding in favor of such party.
(2) Nonsuit abolished; misdesignation of motions. 805.14(2)(a)(a)
The involuntary nonsuit is abolished. If a motion for involuntary nonsuit is made, it shall be treated as a motion to dismiss.
When a party mistakenly designates a motion to dismiss as a motion for directed verdict, or vice versa; or mistakenly designates a motion to change answer as a motion for judgment notwithstanding the verdict, or vice versa; or otherwise mistakenly designates a motion challenging the sufficiency of evidence as a matter of law, the court shall treat the motion as if there had been a proper designation.
(3) Motion at close of plaintiff's evidence.
At the close of plaintiff's evidence in trials to the jury, any defendant may move for dismissal on the ground of insufficiency of evidence. If the court determines that the defendant is entitled to dismissal, the court shall state with particularity on the record or in its order of dismissal the grounds upon which the dismissal was granted and shall render judgment against the plaintiff.
(4) Motion at close of all evidence.
In trials to the jury, at the close of all evidence, any party may challenge the sufficiency of the evidence as a matter of law by moving for directed verdict or dismissal or by moving the court to find as a matter of law upon any claim or defense or upon any element or ground thereof.
Motion for judgment.
A motion for judgment on the verdict is not required. If no motion after verdict is filed within the time period specified in s. 805.16
, judgment shall be entered on the verdict at the expiration thereof. If a motion after verdict is timely filed, judgment on the verdict shall be entered upon denial of the motion.
Motion for judgment notwithstanding verdict.
A party against whom a verdict has been rendered may move the court for judgment notwithstanding the verdict in the event that the verdict is proper but, for reasons evident in the record which bear upon matters not included in the verdict, the movant should have judgment.
Motion to change answer.
Any party may move the court to change an answer in the verdict on the ground of insufficiency of the evidence to sustain the answer.
Motion for directed verdict.
A party who has made a motion for directed verdict or dismissal on which the court has not ruled pending return of the verdict may renew the motion after verdict. In the event the motion is granted, the court may enter judgment in accordance with the motion.
It is not necessary to move for a directed verdict or dismissal prior to submission of the case to the jury in order to move subsequently for a judgment notwithstanding the verdict or to change answer.
Motions under this subsection may be heard as prescribed in s. 807.13
(6) Grounds to be stated with particularity.
In any motion challenging the sufficiency of evidence, the grounds of the motion shall be stated with particularity. Mere conclusory statements and statements lacking express reference to the specific element of claim or defense as to which the evidence is claimed to be deficient shall be deemed insufficient to entitle the movant to the order sought. If the court grants a motion challenging the sufficiency of the evidence, the court shall state on the record or in writing with particularity the evidentiary defect underlying the order.
(7) Effect of order of dismissal.
Unless the court in its order for dismissal otherwise specifies for good cause recited in the order, any dismissal under this section operates as an adjudication upon the merits.
A party who moves for dismissal or for a directed verdict at the close of the evidence offered by an opponent may offer evidence in the event that the motion is not granted without having reserved the right to do so and to the same extent as if the motion had not been made. A motion for a directed verdict which is not granted is not a waiver of trial by jury even though all parties to the action have moved for directed verdict.
(9) Involuntary dismissal of counterclaim, cross-claim or 3rd party claim.
This section applies to counterclaims, cross-claims and 3rd party claims.
Sup. Ct. Order, 67 Wis. 2d 585
, 704 (1975); Sup. Ct. Order, 67 Wis. 2d vii (1975); 1975 c. 218
; Sup. Ct. Order, 73 Wis. 2d xxxi (1986); Sup. Ct. Order, 118 Wis. 2d xiii (1984); Sup. Ct. Order, 141 Wis. 2d xiii (1987).
Judicial Council Committee's Note, 1976: Sub. (3) applies only to trials to the jury, codifying Household Utilities, Inc. v. Andrews Co., 71 Wis. 2nd 17 (1976). The standard for granting a motion under sub. (3) is found in sub. (1). Motions made by a defendant for dismissal after a plaintiff has completed presenting his evidence in trials to the court is governed by s. 805.17 (1). [Re Order effective Jan. 1, 1977]
Judicial Council Note, 1984: Sub. (5) (a) is amended by eliminating the requirement for a motion before judgment is entered on a verdict. [Re Order effective July 1, 1984]
Judicial Council Note, 1988: Sub. (5) (f) [created] allows motions after verdict to be heard by telephone conference. [Re Order effective Jan. 1, 1988]
An inconsistent verdict, if not timely remedied by reconsideration by the jury, must result in a new trial unless the party injured by the inconsistency waives that portion of its damage claim and the waiver does not result in a change of the prevailing party as found by the jury. Westfall v. Kottke, 110 Wis. 2d 86
, 328 N.W.2d 481
If there is any credible evidence which, under any reasonable view, fairly admits of an inference that supports a jury's finding, the finding may not be overturned. GenStar v. Bankruptcy Estate of Lake Geneva Sugar Shack, 215 Wis. 2d 104
, 572 N.W.2d 881
(Ct. App. 1997).
A party may move to set aside a verdict and for a new trial because of errors in the trial, or because the verdict is contrary to law or to the weight of evidence, or because of excessive or inadequate damages, or because of newly-discovered evidence, or in the interest of justice. Motions under this subsection may be heard as prescribed in s. 807.13
. Orders granting a new trial on grounds other than in the interest of justice, need not include a finding that granting a new trial is also in the interest of justice.
Every order granting a new trial shall specify the grounds therefor. No order granting a new trial shall be valid or effective unless the reasons that prompted the court to make such order are set forth on the record, or in the order or in a written decision. In such order, the court may grant, deny or defer the awarding of costs.
(3) Newly-discovered evidence.
A new trial shall be ordered on the grounds of newly-discovered evidence if the court finds that:
The evidence has come to the moving party's notice after trial; and
The moving party's failure to discover the evidence earlier did not arise from lack of diligence in seeking to discover it; and
The evidence is material and not cumulative; and
The new evidence would probably change the result.
(4) Alternate motions; conditional order.
If the court grants a motion for judgment notwithstanding the verdict, or a motion to change answer and render judgment in accordance with the answer so changed, or a renewed motion for directed verdict, the court shall also rule on the motion for new trial, if any, by determining whether it should be granted if the judgment is thereafter vacated or reversed, and shall specify the grounds for granting or denying the motion for new trial. If the motion for a new trial is thus conditionally granted and the judgment has been reversed on appeal, the new trial shall proceed unless the appellate court shall have otherwise ordered. In case the motion for a new trial has been conditionally denied, the appellee may assert error in that denial; and if the judgment is reversed on appeal, subsequent proceedings shall be in accordance with the order of the appellate court.
If the court denies a motion for judgment notwithstanding the verdict, or a motion to change answer and render judgment in accordance with the answer so changed, or a renewed motion for directed verdict, the party who prevailed on that motion may, as appellee, assert for the first time, grounds which entitle the party to a new trial in the event the appellate court concludes that the trial court erred in denying the motion for judgment notwithstanding the verdict or motion to change answer and render judgment in accordance with the answer so changed, or a renewed motion for directed verdict. If the appellate court reverses the judgment, nothing in this section precludes it from determining that the appellee is entitled to a new trial, or from directing the trial court to determine whether a new trial shall be granted.
(6) Excessive or inadequate verdicts.
If a trial court determines that a verdict is excessive or inadequate, not due to perversity or prejudice or as a result of error during trial (other than an error as to damages), the court shall determine the amount which as a matter of law is reasonable, and shall order a new trial on the issue of damages, unless within 10 days the party to whom the option is offered elects to accept judgment in the changed amount. If the option is not accepted, the time period for petitioning the court of appeals for leave to appeal the order for a new trial under ss. 808.03 (2)
commences on the last day of the option period.
Sup. Ct. Order, 67 Wis. 2d 585
, 708 (1975); 1975 c. 218
; 1979 c. 110
; 1983 a. 219
; Sup. Ct. Order, 141 Wis. 2d xiii (1987).
Judicial Council Note, 1983: Sub. (6) is amended to codify the holding of Wick v. Mueller, 105 Wis. 2d 191
, 313 N.W. 2d 749
(1982) that orders for new trials under this subsection are not appealable as of right and that the time period for seeking leave to appeal under ss. 808.03 (2) and 809.50, stats., is computed from the last day of the option period set forth in the trial court's order. [Bill 151-S]
Judicial Council Note, 1988: Sub. (1) is amended to allow motions for new trial to be heard by telephone conference. [Re Order effective Jan. 1, 1988]
A statement that the verdict is contrary to the weight of evidence will not support an order granting a new trial in the interest of justice. DeGroff v. Schmude, 71 Wis. 2d 554
, 238 N.W.2d 730
In a personal injury action it is not grounds to grant a new trial merely because an expert listed under a pretrial order is not called as a witness at trial and the expert's report is admitted. Karl v. Employers Ins. of Wausau, 78 Wis. 2d 284
, 254 N.W.2d 255
Where the answer to one material question shows that the jury made its answer perversely, the trial court should set aside the entire verdict unless it is satisfied that other questions were not affected by the perversity. Fouse v. Persons, 80 Wis. 2d 390
, 259 N.W.2d 92
If there is a reasonable basis for the trial court's determination under sub. (6) as to the proper amount, it will be sustained. Koele v. Radue, 81 Wis. 2d 583
, 260 N.W.2d 766
Where a jury award of damages was so inadequate that it indicated prejudice, the trial court did not abuse its discretion by ordering a new trial on all issues. Larry v. Commercial Union Ins. Co. 88 Wis. 2d 728
, 277 N.W.2d 821
An order for a new trial under . 805.15 (6) is not a final order and is not appealable as of right under s. 808.03 (1). Earl v. Marcus, 92 Wis. 2d 13
, 284 N.W.2d 690
(Ct. App. 1979).
A shockingly low award of damages justified a new trial on that issue. Westfall v. Kottke, 110 Wis. 2d 86
, 328 N.W.2d 481
A court may order a retrial under sub. (6) on punitive damages alone. Badger Bearing v. Drives & Bearings, 111 Wis. 2d 659
, 331 N.W.2d 847
(Ct. App. 1983).
The trial court may not grant a new trial based solely upon unobjected to instructional errors, but may use that error to grant a new trial in the interest of justice. State v. Harp, 150 Wis. 2d 861
, 443 N.W.2d 38
(Ct. App. 1989).
A new trial in the interest of justice under sub. (1) where the controversy was not fully tried is not limited to cases of evidentiary error and does not require a showing of a probable different result in the 2nd trial. State v. Harp, 161 Wis. 2d 773
, 469 N.W.2d 210
(Ct. App. 1991).
The standard for granting a new trial in the interest of justice where the verdict is contrary to the great weight of the evidence is less stringent than for granting a motion challenging the sufficiency of the evidence under s. 805.14. Sievert v. American Family Mut. Ins. Co. 180 Wis. 2d 426
, 509 N.W.2d 75
(Ct. App. 1993).
A co-defendant's testimony that the defendant was aware of at trial but unable to present because the co-defendant refused to testify on 5th amendment grounds was not newly discovered evidence. State v. Jackson, 188 Wis. 2d 187
, 525 N.W.2d 739
(Ct. App. 1994).
Time for motions after verdict. 805.16(1)
Motions after verdict shall be filed and served within 20 days after the verdict is rendered, unless the court, within 20 days after the verdict is rendered, sets a longer time by an order specifying the dates for filing motions, briefs or other documents.
The time for hearing arguments on motions after verdict shall be not less than 10 nor more than 60 days after the verdict is rendered, unless enlarged pursuant to motion under s. 801.15 (2) (a)
If within 90 days after the verdict is rendered the court does not decide a motion after verdict on the record or the judge, or the clerk at the judge's written direction, does not sign an order deciding the motion, the motion is considered denied and judgment shall be entered on the verdict.
Notwithstanding sub. (1)
, a motion for a new trial based on newly discovered evidence may be made at any time within one year after verdict. Unless an order granting or denying the motion is entered within 90 days after the motion is made, it shall be deemed denied.
Sup. Ct. Order, 67 Wis. 2d 585
, 711 (1975); Sup. Ct. Order, 118 Wis. 2d xiii (1984); Sup. Ct. Order, 136 Wis. 2d xxv (1987); Sup. Ct. Order 160 Wis. 2d xiii (1991).
Judicial Council Note, 1984: The requirement that the judge set dates for filing and hearing motions after verdict is repealed in favor of a time limit for such motions. The prior rule encouraged frivolous motions and caused unnecessary hearings. [Re Order effective July 1, 1984]
Judicial Council Note, 1986: Sub. (1) specifies that the trial court may allow more than 20 days for motions after verdict to be filed, if a schedule for the filing of motions and supporting materials is ordered within that time.
Sub. (2) clarifies that the time for hearing motions after verdict may be enlarged upon motion and good cause shown. However, any such enlargement does not affect the requirement that the motion be decided within 90 days after the verdict is rendered. See sub. (3) and s. 801.15 (2) (c), Stats.
Sub. (4) is revised to require that a motion for new trial based on newly discovered evidence be decided within 90 days after it is made. The prior statute required such motions to be decided within 30 days after hearing, but did not require the hearing to be held within any specified time. [Re Order eff. 7-1-87]
Effective date note
Judicial Council Note, 1991: Sub. (3) is rewritten to clarify that if a motion after verdict is granted within 90 days, it will not be deemed denied merely because such order is not entered within 90 days after verdict. [Re Order eff. 7-1-91]
Motions for directed verdicts and motions to dismiss made at the close of the plaintiff's case are motions challenging the sufficiency of the evidence under this section. Jansen Co. v. Milwaukee Area Dist. Board, 105 Wis. 2d 1
, 312 N.W.2d 813
Time periods under this section may not be enlarged by showing excusable neglect under s. 801.15 (2) (a). Brookhouse v. State Farm Mut. Ins. 130 Wis. 2d 166
, 387 N.W.2d 82
(Ct. App. 1986).
Failure to present timely postverdict motions does not deprive the court of appeals of jurisdiction to review a judgment. Hartford Ins. Co. v. Wales, 138 Wis. 2d 508
, 406 N.W.2d 426
Once the trial court loses authority to set aside a verdict under this section by failing to act within 90 days, it cannot achieve the same result by vacating the judgment under s. 806.07 (1) (h). Manly v. State Farm Fire and Cas. Co. 139 Wis. 2d 249
, 407 N.W.2d 306
(Ct. App. 1987).
The trial court is not competent to consider sub. (1) motions where the movant fails to timely file the motions and fails to obtain an extension before expiration of the 20-day period. Ahrens-Cadillac Olds v. Belongia, 151 Wis. 2d 763
, 445 N.W.2d 744
(Ct. App. 1989).
Trial court actions under s. 805.16 permitted pending appeal under s. 808.075 are subject to sub. (1) time limits. Schmidt v. Smith, 162 Wis. 2d 363
, 469 N.W.2d 855
(Ct. App. 1991).
This section applies to trial-related motions. An award of attorney fees is not trial-related. Gorton v. American Cyanamid Co. 194 Wis. 2d 203
, 533 N.W.2d 746
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.
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.
(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.
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.
Sup. Ct. Order, 67 Wis. 2d 585
, 712 (1975); Sup. Ct. Order, 73 Wis. 2d xxxi (1976); Sup. Ct. Order, 107 Wis. 2d xi (1982); Sup Ct. Order, 130 Wis. 2d xi (1986); Sup. Ct. Order, 160 Wis. 2d xiii (1991); 1993 a. 486
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]
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]
Section 805.17 (3) does not limit the trial court's discretionary power to grant relief from an order or judgment under s. 806.07 (1) (h) when reasons justifying relief are apparent to the court. In Matter of Estate of Smith, 82 Wis. 2d 667
, 264 N.W.2d 239
Failure to bring a motion under sub. (3) to correct a manifest error constitutes a waiver of the right to have an issue considered on appeal. Marriage of Schinner v. Schinner, 143 Wis. 2d 81
, 420 N.W.2d 381
(Ct. App. 1988).
Where a motion is filed under sub. (3), the 45-day time for appeal under s. 808.04 (1) applies beginning upon disposal of the motion. Salzman v. DNR, 168 Wis. 2d 523
, 484 N.W.2d 337
(Ct. App. 1992).
In a 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 Wis. 2d 733
, 496 N.W.2d 637
(Ct. App. 1992).
Sub. (3) modifies the deadline for filing appeals only on reconsideration motions after trials to the court. Continental Casualty Co. v. Milwaukee Metropolitan Sewerage District 175 Wis. 2d 527
, 499 N.W.2d 282
(Ct. App. 1993).
Reconsideration assumes a question that 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 Wis. 2d 229
, 519 N.W.2d 769
(Ct. App. 1994).