809.11 Annotation
See note to 809.10, citing Douglas v. Dewey, 147 W (2d) 328, 433 NW (2d) 243 (1989).
809.12
809.12
Rule (Motion for relief pending appeal). A person seeking relief under
s. 808.07 shall file a motion in the trial court unless it is impractical to seek relief in the trial court. A motion in the court must show why it was impractical to seek relief in the trial court or, if a motion had been filed in the trial court, the reasons given by the trial court for its action. A person aggrieved by an order of the trial court granting the relief requested may file a motion for relief from the order with the court. A judge of the court may issue an ex parte order granting temporary relief pending a ruling by the court on a motion filed pursuant to this rule. A motion filed in the court under this section must be filed in accordance with
s. 809.14.
809.12 History
History: Sup. Ct. Order, 83 W (2d) xiii (1978);
1981 c. 390 s.
252.
809.12 Note
Judicial Council Committee's Note, 1978: Rule 809.12 details the procedure for seeking temporary relief pending appeal. It follows generally the prior unwritten procedure and Rule 8 (a), FRAP. [Re Order effective July 1, 1978]
809.13
809.13
Rule (Intervention). A person not a party to an appeal may file in the court a petition to intervene in the appeal. A party may file a response to the petition within seven (7) days after service of the petition. The court may grant the petition upon a showing that the petitioner's interest meets the requirements of
s. 803.09 (1) or
(2).
809.13 History
History: Sup. Ct. Order, 83 W (2d) xiii (1978);
1981 c. 390 s.
252.
809.13 Note
Judicial Council Committee's Note, 1978: Former s. 817.12 (6) permitted the addition of parties but did not set the criteria for doing so. This void is filled by making the intervention rule in the Rules of Civil Procedure applicable to proceedings in the Court of Appeals. [Re Order effective July 1, 1978]
809.13 Annotation
A party who could have, but failed to, file a timely notice of appeal may not participate in the appeal as an intervenor or by filing a nonparty brief. Weina v. Atlantic Mut. Ins. Co. 177 W (2d) 341, 501 NW (2d) 465 (Ct. App. 1993).
809.14(1)(1) A party seeking an order or other relief in a case shall file a motion for the order or other relief. The motion must state the order or relief sought and the grounds on which the motion is based and may include a statement of the position of other parties as to the granting of the motion. A motion may be supported by a memorandum. Any other party may file a response to the motion within 7 days of service of the motion.
809.14(2)
(2) A motion for a procedural order may be acted upon without a response to the motion. A party adversely affected by a procedural order entered without having had the opportunity to respond to the motion may move for reconsideration of the order within 7 days of service of the order.
809.14(3)
(3) The filing of a motion seeking an order or other relief which may affect the disposition of an appeal or the content of the record or a brief automatically enlarges the time for performing an act required by these rules for a period coextensive with the time between the filing of the motion and its disposition.
809.14 History
History: Sup. Ct. Order, 83 W (2d) xiii (1978); Sup. Ct. Order, 92 W (2d) xiii;
1991 a. 263;
1995 a. 224.
809.14 Note
Judicial Council Committee's Note, 1978: The motion procedure under former Rule 251.71 is continued except that the time for replying to a motion is reduced from 10 to 7 days. A response is not required before action can be taken on a procedural motion because these motions include matters previously handled by letter request or which usually do not adversely affect the opposing party. If an opposing party is adversely affected by a procedural order, he has the right to request the court to reconsider it. Procedural orders include the granting of requests for enlargement of time, to file an amicus brief, or to file a brief in excess of the maximum established by the rules. This section is based on Federal Rules of Appellate Procedure, Rule 27. Sub. (3) modifies the prior practice under which the filing of any motion stayed any due date until 20 days after the motion was decided. This could result in an unintentional shortening of the time in which a brief had to be filed. It could also result in an unnecessary delay if a ruling on the motion would not affect the outcome of the case, the issues to be presented to the court, or a brief or the record. [Re Order effective July 1, 1978]
809.14 Note
Judicial Council Committee's Note, 1979: Sub. (1) is amended by deleting a provision that required only an original and one copy of a motion be filed with an appellate court. With the amendment, the number of copies of a motion to be filed is now governed by 809.81 on the form of papers to be filed with an appellate court, which requires in sub. (2) that 4 copies of a paper be filed with the Court of Appeals and 8 copies with the Supreme Court. [Re Order effective Jan. 1, 1979]
809.14 Annotation
Motion to dismiss appeal under (3) does not extend time for filing cross-appeal. Marriage of Rossmiller v. Rossmiller, 151 W (2d) 386, 444 NW (2d) 445 (Ct. App. 1989).
809.15
809.15
Rule (Record on appeal). 809.15(1)(a)(a) The record on appeal consists of the following unless the parties stipulate to the contrary:
809.15(1)(a)1.
1. The paper by which the action or proceeding was commenced;
809.15(1)(a)5.
5. Verdict, or findings of the court, and order based thereon;
809.15(1)(a)8.
8. Order made after judgment relevant to the appeal and papers upon which the order is based;
809.15(1)(a)9.
9. Exhibits material to the appeal whether or not received in evidence;
809.15(1)(a)10.
10. Any other paper or exhibit filed in the court requested by a party to be included in the record;
809.15(1)(b)
(b) The clerk of the trial court may request by letter permission of the court to substitute a photocopy for the actual paper or exhibit filed in the trial court.
809.15(2)
(2) Compilation and approval of the record. The clerk of the trial court shall assemble the record in the order set forth in
sub. (1) (a), identify by number or letter each paper, and prepare a list of the numbered or lettered papers. At least 10 days prior to the due date for filing the record in the court, the clerk shall notify in writing each party appearing in the trial court that the record has been assembled and is available for inspection. The clerk shall include with the notice the list of the papers constituting the record.
809.15(3)
(3) Defective record. A party who believes the record, including the transcript of the reporter's notes, is defective or does not accurately reflect what occurred in the trial court may move the court in which the record is located to correct the record. Motions under this subsection may be heard under
s. 807.13.
809.15(4)
(4) Transmittal of the record. The clerk of the trial court shall transmit the record to the court within 20 days from the date of the filing of the transcript or from the date of the filing of a statement that no transcript is necessary for prosecution of the appeal, but in no event more than 90 days after the filing of the notice of appeal unless the court enlarges the time for the transmittal of the record or the preparation of the transcript of the reporter's notes. The clerk of the court shall notify the clerk of the trial court and all parties appearing in the trial court of the date the record was filed.
809.15(5)
(5) Agreed statement in lieu of record. The parties may file in the court within the time prescribed by
sub. (4) an agreed statement of the case in lieu of the record on appeal. The statement must:
809.15(5)(a)
(a) Show how the issues presented by the appeal arose and were decided by the trial court; and
809.15(5)(b)
(b) Recite sufficient facts proved or sought to be proved as are essential to a resolution of the issues presented.
809.15 History
History: Sup. Ct. Order, 83 W (2d) xiii; Sup. Ct. Order, 104 W (2d) xi; Sup. Ct. Order, 141 W (2d) xiii (1987);
1987 a. 403.
809.15 Note
Judicial Council Committee's Note, 1978: Sub. (1) substantially embodies former s. 251.25. It also permits the filing of a photocopy instead of the original record but only with the approval of the Court of Appeals, changing to some extent prior Rules 251.25 (13) and 251.27. Under this section the parties can stipulate to exclude some items from the record, but this should be done before the clerk assembles the record.
809.15 Annotation
Sub. (2). The responsibility for having the record assembled and transmitted to the Court of Appeals is transferred from the appellant to the clerk of the trial court. It is not necessary to have the attorneys present at the pagination of the record. The federal procedure set forth in Rule 11 (b), FRAP, under which the clerk assembles the record and then notifies the parties so that they can inspect the record prior to it being sent to the Court of Appeals is adopted. Also adopted is the federal procedure of the clerk preparing a list of all the papers in the record. The former system of numbering each page in the record consecutively is abandoned for the simpler practice of assigning a letter or number to each document and using its internal page reference. Thus, the reference to the third page of the first document would be A-3 and to the fifth page of the second document B-5.
809.15 Annotation
Sub. (3). This provision replaces former Rule 251.30 and s. 817.117.
809.15 Annotation
Subs. (4) and (5). The provisions of former Rules 251.29 and 251.28 are included in these subsections. [Re Order effective July 1, 1978]
809.15 Note
Judicial Council Committee's Note, 1981: Sub. (4) is amended to provide for an expedited transmittal of the record for appeals in which a transcript is not necessary for prosecution of the appeal or a transcript is filed in less than the maximum time period permitted by ch. 809. [Re Order effective Jan. 1, 1982]
809.15 Note
Judicial Council Note, 1988: Sub. (3) is amended to allow motions to correct the record to be heard by telephone conference. [Re Order effective Jan. 1, 1988]
809.15 Annotation
Appellant's failure to file motion under (3) did not constitute waiver of right to challenge adequacy of transcript. State v. Perry, 136 W (2d) 92, 401 NW (2d) 748 (1987).
809.15 Annotation
It is the appellant's responsibility to assure the record is complete; where the record is incomplete, it is assumed the missing material supports the trial court ruling. Fiumefreddo v. McLean, 174 W (2d) 10, 496 NW (2d) 226 (Ct. App. 1993).
809.16
809.16
Rule (Transcript of reporter's notes). 809.16(1)
(1) Within 10 days of the filing of the notice of appeal, the appellant shall make arrangements with the reporter for the preparation of a transcript of the reporter's notes of the proceedings and service of copies and file in the court a designation of the portions of the reporter's notes that have been ordered. Any other party may file within 10 days of service of the appellant's notice, a designation of additional portions to be included in the transcript. The appellant shall file within 10 days of the service of the other party's designation the statement required by
s. 809.11 (4) covering the other party's designations. If the appellant fails or refuses to order the designated portions, the other party may order the portions or file a motion with the trial court for an order requiring the appellant to do so.
809.16(3)
(3) The reporter shall serve copies of the transcript on the parties to the appeal, file the transcript with the trial court and notify the clerk of the court within 60 days of the date the transcript was ordered and arrangements made for payment.
809.16(4)
(4) A reporter may obtain an extension for filing the transcript only by motion showing good cause filed in the court and served on all parties to the appeal.
809.16(5)
(5) If a reporter fails to file timely a transcript, the court may declare a reporter ineligible to act as an official court reporter in any court proceeding and prohibit the reporter from performing any private reporting work until the overdue transcript is filed.
809.16 History
History: Sup. Ct. Order, 83 W (2d) xiii (1978); Sup. Ct. Order, 92 W (2d) xiii (1979);
1981 c. 390 s.
252.
809.16 Cross-reference
Cross-reference: See s.
809.80 concerning serving copies of papers required to be filed in the appellate or trial courts.
809.16 Note
Judicial Council Committee's Note, 1978: Subs. (1) and (2). The procedure in Rule 10 (b), FRAP, for the ordering of the transcript is combined with former s. 817.118. A time limit is placed on ordering the transcript to prevent the failure to do so from being a cause of delay in the appellate process.
809.16 Annotation
Subs. (3), (4) and (5). The reporter is given 60 days from the date the transcript is ordered in which to complete the transcript, a reduction of up to 30 days from the total time allowed in former s. 817.115. The obligation is placed on the reporter rather than the appellant to obtain an extension for filing the transcript because this is a matter not in the control of the appellant. The application for an extension is filed in the Court of Appeals rather than the trial court because of the primary concern of the Court of Appeals with cases pending before it and because of the natural reluctance of the trial judge to deny a request made by his own appointee.
809.16 Annotation
The power of the Court of Appeals to impose sanctions upon a court reporter for failing to file a transcript on time is expressly recognized. These sanctions were among those recommended in 1971 by a special committee appointed by the Supreme Court to study the problem of delayed transcripts.
809.16 Annotation
The provisions of former s. 817.117, detailing the procedure for approval of the transcript, are eliminated in favor of the federal procedure which treats the correction of the transcript the same as correction of any other part of the record. Thus, correction of any alleged error in the transcript will be made under Rule 809.15 (3). [Re Order effective July 1, 1978]
809.16 Note
Judicial Council Committee's Note, 1979: Subs. (1) and (3) are amended to clarify that the court reporter is responsible for serving copies of the transcript on the parties. The appellant is responsible for initiating the arrangements for preparation and payment of the original and copies of the transcript. Rule 809.16 does not prohibit any party from waiving the service of copies of the transcript. [Re Order effective Jan. 1, 1980]
809.16 Annotation
Procedure established for use when court reporter's notes are lost while post-trial proceedings are pending. State v. DeLeon, 127 W (2d) 74, 377 NW (2d) 635 (Ct. App. 1985).
809.17
809.17
Rule (Expedited appeals program and pre-submission conference). 809.17(1)
(1) In order to minimize appellate delay and reduce its backlog, the court of appeals may develop an expedited appeals program. The program may involve mandatory completion of docketing statements by appellant's counsel and participation in presubmission conferences at the direction of the court, but participation in the court's accelerated briefing and decision process is voluntary. The rules and procedures governing the program shall be set forth in the court of appeals' internal operating procedures.
809.17(2)
(2) The court of appeals may require all attorneys of record in any appeal to participate in a presubmission conference, either by telephone or in person, with an officer of the court. An attorney of record with no direct briefing interest in the appeal may waive his or her participation in the conference by written notice to the court.
809.17 History
History: Sup. Ct. Order, 83 W (2d) xiii (1978); Sup. Ct. Order, 131 W (2d) xvi (1986).
809.17 Annotation
Court of Appeals Note, 1986: Section (Rule) 809.17 is repealed and recreated to give the court of appeals authority to administer its expedited appeals program pursuant to Section VII, Expedited Appeals, of the Court of Appeals Internal Operating Procedures (amended 1986). The rule replaces a similar delegation of authority to the chief judge of the court of appeals by order of the supreme court dated December 19, 1983. [Re Order effective January 1, 1987]
809.17 Annotation
Although a formal order was subsequently signed, the trial court's letter to the parties informing them that a motion for reconsideration was denied was a denial "on the record" under sub. (3) and the time for filing an appeal commenced on the date of the letter. Orth v. Ameritrade, Inc. 187 W (2d) 162, 522 NW (2d) 30 (Ct. App. 1994).
809.18
809.18
Rule (Voluntary dismissal). An appellant may dismiss a filed appeal by filing a notice of dismissal in the court or, if the appeal is not yet filed, in the trial court. The dismissal of an appeal does not affect the status of a cross-appeal or the right of a respondent to file a cross-appeal.
809.18 History
History: Sup. Ct. Order, 83 W (2d) xiii (1978);
1995 a. 224.
809.18 Note
Judicial Council Committee's Note, 1978: An appeal may be dismissed by the appellant at any time prior to a court decision on the appeal without approval of the court or the respondent. This changes the former procedure and modifies Rule 42, FRAP. The Rule specifically protects a respondent who has or intends to file a cross-appeal, and for this reason the appellant is authorized to dismiss the appeal at will. The filing of a notice of dismissal does not affect the liability of the appellant for costs or fees, or the power of the court to impose penalties under Rule 809.83 (1). [Re Order effective July 1, 1978]
809.18 Annotation
This section does not command the dismissal of a petition for a supervisory writ upon the filing of a notice of voluntary dismissal. A petition for a supervisory writ is not an "appeal". Interest of Peter B. 184 W (2d) 57, 616 NW (2d) 746 (Ct. App. 1994).
809.18 Annotation
The court of appeals must dismiss an appeal when an appellant files a notice of voluntary dismissal before the court issues its decision on the appeal. State v. Lee, 197 W (2d) 960, 542 NW (2d) 143 (1996).
809.19
809.19
Rule (Briefs and appendix). 809.19(1)
(1)
Brief of appellant. The appellant shall file a brief within 40 days of the filing in the court of the record on appeal. The brief must contain:
809.19(1)(a)
(a) A table of contents with page references of the various portions of the brief, including headings of each section of the argument, and a table of cases arranged alphabetically, statutes and other authorities cited with reference to the pages of the brief on which they are cited.
809.19(1)(b)
(b) A statement of the issues presented for review and how the trial court decided them.
809.19(1)(c)
(c) A statement with reasons as to whether oral argument is necessary and a statement as to whether the opinion should be published and, if so, the reasons therefor.
809.19(1)(d)
(d) A statement of the case, which must include: a description of the nature of the case; the procedural status of the case leading up to the appeal; the disposition in the trial court; and a statement of facts relevant to the issues presented for review, with appropriate references to the record.
809.19(1)(e)
(e) An argument, arranged in the order of the statement of issues presented. The argument on each issue must be preceded by a one sentence summary of the argument and is to contain the contention of the appellant, the reasons therefor, with citations to the authorities, statutes and parts of the record relied on as set forth in the Uniform System of Citation and
SCR 80.02.
809.19(1)(f)
(f) A short conclusion stating the precise relief sought.
809.19(1)(g)
(g) Reference to an individual by first name and last initial rather than by his or her full name when the record is required by law to be confidential.
809.19(2)
(2) Appendix. The appellant's brief shall include a short appendix providing relevant trial court record entries, the findings or opinion of the trial court and limited portions of the record essential to an understanding of the issues raised, including oral or written rulings or decisions showing the trial court's reasoning regarding those issues. The appendix shall include a table of contents. If the record is required by law to be confidential, the portions of the record included in the appendix shall be reproduced using first names and last initials instead of full names of persons, specifically including juveniles and parents of juveniles, with a notation that the portions of the record have been so reproduced to preserve confidentiality and with appropriate references to the record.
809.19(3)(a)(a) The respondent shall file a brief within 30 days of the service of the appellant's brief. The brief must conform with
sub. (1), except that the statement of issues and the statement of the case may be excluded.
809.19(3)(b)
(b) The respondent may file with his or her brief a supplemental appendix in conformity with
sub. (2).
809.19(4)
(4) Reply brief. The appellant shall file within 15 days of the service of the respondent's brief a reply brief or statement that a reply brief will not be filed.
