1997 Chapter 805

805.15 Annotation Sub. (6) establishes commencement of 10-day appeal period. Wick v. Mueller, 105 W (2d) 191, 313 NW (2d) 799 (1982).

805.15 Annotation Shockingly low award of damages justified new trial on that issue. Westfall v. Kottke, 110 W (2d) 86, 328 NW (2d) 481 (1983).

805.15 Annotation Court may order retrial under (6) on punitive damages alone. Badger Bearing v. Drives & Bearings, 111 W (2d) 659, 331 NW (2d) 847 (Ct. App. 1983).

805.15 Annotation See note to 752.35, citing State v. McConnohie, 113 W (2d) 362, 334 NW (2d) 903 (1983).

805.15 Annotation Trial court may not grant new trial based solely upon unobjected to instructional errors, but may use such error to grant new trial in interest of justice. State v. Harp, 150 W (2d) 861, 443 NW (2d) 38 (Ct. App. 1989).

805.15 Annotation New trial in interest of justice under (1) where controversy was not fully tried, not limited to cases of evidentiary error and does not require showing of probable different result in second trial. State v. Harp, 161 W (2d) 773, 469 NW (2d) 210 (Ct. App. 1991).

805.15 Annotation 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 W (2d) 426, 509 NW (2d) 75 (Ct. App. 1993).

805.15 Annotation A co-defendant's testimony which 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 W (2d) 187, 525 NW (2d) 739 (Ct. App. 1994).

805.16 805.16  Time for motions after verdict.

805.16(1) (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.

805.16(2) (2) 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).

805.16(3) (3) 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.

805.16(4) (4) 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.

805.16 History History: Sup. Ct. Order, 67 W (2d) 585, 711 (1975); Sup. Ct. Order, 118 W (2d) xiii (1984); Sup. Ct. Order, 136 W (2d) xxv (1987); Sup. Ct. Order 160 W (2d) xiii (1991).

805.16 Note 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]

805.16 Note 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.

805.16 Annotation 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.

805.16 Annotation 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]

805.16 Annotation Motions for directed verdicts and motions to dismiss made at close of plaintiff's case are motions challenging sufficiency of evidence under this section. Jansen Co. v. Milwaukee Area Dist. Board, 105 W (2d) 1, 312 NW (2d) 813 (1981).

805.16 Annotation Time periods under this section may not be enlarged by showing excusable neglect under 801.15 (2) (a). Brookhouse v. State Farm Mut. Ins. 130 W (2d) 166, 387 NW (2d) 82 (Ct. App. 1986).

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).

805.17 Annotation A court's final written findings of fact and conclusions of law take precedence over an earlier written memorandum or an oral finding not repeated in the final order. When there is a conflict between an ambiguous oral pronouncement and the written judgment, it is proper to look to the written judgment to ascertain the court's intent. Jackson v. Gray, 212 W (2d) 436, 569 NW (2d) 467 (Ct. App. 1997).

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 selection or misdirection of the 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); Sup. Ct. Order No. 96-08, 207 W (2d) xv (1997).

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).