CHAPTER 807
CIVIL PROCEDURE — MISCELLANEOUS PROVISIONS
807.01 Settlement offers.
807.02 Motions, where heard; stay of proceedings.
807.03 Orders, how vacated and modified.
807.04 Proceedings, where held; restriction as to making orders.
807.06 Copy of paper may be used, when.
807.07 Irregularities and lack of jurisdiction over the parties waived on appeal; jurisdiction exercised; transfer to proper court.
807.08 Borrowing court files regulated.
807.10 Settlements in behalf of minors; judgments.
807.11 Orders: rendition and entry.
807.12 Suing by fictitious name or as unknown; partners' names unknown.
807.13 Telephone and audiovisual proceedings.
807.15 Penalty for certain actions by prisoners.
Ch. 807 Note
NOTE: Chapter 807 was created by Sup. Ct. Order, 67 W (2d) 585, 740 (1975), which contains Judicial Council Committee notes explaining each section. Statutes prior to the 1983-84 edition also have these notes.
807.01
807.01
Settlement offers. 807.01(1)(1) After issue is joined but at least 20 days before the trial, the defendant may serve upon the plaintiff a written offer to allow judgment to be taken against the defendant for the sum, or property, or to the effect therein specified, with costs. If the plaintiff accepts the offer and serves notice thereof in writing, before trial and within 10 days after receipt of the offer, the plaintiff may file the offer, with proof of service of the notice of acceptance, and the clerk must thereupon enter judgment accordingly. If notice of acceptance is not given, the offer cannot be given as evidence nor mentioned on the trial. If the offer of judgment is not accepted and the plaintiff fails to recover a more favorable judgment, the plaintiff shall not recover costs but defendant shall recover costs to be computed on the demand of the complaint.
807.01(2)
(2) After issue is joined but at least 20 days before trial, the defendant may serve upon the plaintiff a written offer that if the defendant fails in the defense the damages be assessed at a specified sum. If the plaintiff accepts the offer and serves notice thereof in writing before trial and within 10 days after receipt of the offer and prevails upon the trial, either party may file proof of service of the offer and acceptance and the damages will be assessed accordingly. If notice of acceptance is not given, the offer cannot be given as evidence nor mentioned on the trial. If the offer is not accepted and if damages assessed in favor of the plaintiff do not exceed the damages offered, neither party shall recover costs.
807.01(3)
(3) After issue is joined but at least 20 days before trial, the plaintiff may serve upon the defendant a written offer of settlement for the sum, or property, or to the effect therein specified, with costs. If the defendant accepts the offer and serves notice thereof in writing, before trial and within 10 days after receipt of the offer, the defendant may file the offer, with proof of service of the notice of acceptance, with the clerk of court. If notice of acceptance is not given, the offer cannot be given as evidence nor mentioned on the trial. If the offer of settlement is not accepted and the plaintiff recovers a more favorable judgment, the plaintiff shall recover double the amount of the taxable costs.
807.01(4)
(4) If there is an offer of settlement by a party under this section which is not accepted and the party recovers a judgment which is greater than or equal to the amount specified in the offer of settlement, the party is entitled to interest at the annual rate of 12% on the amount recovered from the date of the offer of settlement until the amount is paid. Interest under this section is in lieu of interest computed under
ss. 814.04 (4) and
815.05 (8).
807.01(5)
(5) Subsections (1) to
(4) apply to offers which may be made by any party to any other party who demands a judgment or setoff against the offering party.
807.01 History
History: Sup. Ct. Order, 67 W (2d) 585, 741 (1975); Sup. Ct. Order, 67 W (2d) vii (1975);
1975 c. 218;
1979 c. 271;
1981 c. 314;
1983 a. 253;
1985 a. 340.
807.01 Cross-reference
Cross-reference: For tender of payment, see s.
895.14.
807.01 Annotation
Sub. (3) applies to cases of both liquidated and unliquidated damages. Graves v. Travelers Ins. Co. 66 W (2d) 124, 224 NW (2d) 398.
807.01 Annotation
Subs. (3) and (4) do not apply to rejected joint settlement offer made on behalf of individual plaintiffs. White v. General Cas. Co. of Wisconsin, 118 W (2d) 433, 348 NW (2d) 614 (Ct. App. 1984).
807.01 Annotation
Defendants who are jointly and severally liable may submit joint offers of judgments to individual plaintiff under (1). Denil v. Integrity Mut. Ins. Co., 135 W (2d) 373, 401 NW (2d) 13 (Ct. App. 1986).
807.01 Annotation
Offers under (3) are revocable. Sonnenburg v. Grohskopf, 144 W (2d) 62, 422 NW (2d) 925 (Ct. App. 1988).
807.01 Annotation
Settlement offer document must indicate offer is made pursuant to 807.01 to qualify for (3) sanctions. Sachsenmaier v. Mittlestadt, 145 W (2d) 781, 429 NW (2d) 532 (Ct. App. 1988).
807.01 Annotation
Under (3) plaintiff suing multiple defendants under multiple theories, one of which involves several liability, must make separate settlement offers. Smith v. Keller, 151 W (2d) 264, 444 NW (2d) 396 (Ct. App. 1989).
807.01 Annotation
Sub. (4) provides for simple, rather than compound, interest to accrue on amount recovered; relationship between (4) and 628.46 (1) discussed. Upthegrove v. Lumbermans Ins. Co., 152 W (2d) 7, 447 NW (2d) 367 (Ct. App. 1989).
807.01 Annotation
While inclusion of reference to this section is preferable, settlement offer that should reasonably be understood as offer pursuant to 807.01 is sufficient to invoke provisions. Bauer v. Piper Industries, Inc. 154 W (2d) 758, 454 NW (2d) 28 (Ct. App. 1990).
807.01 Annotation
Plaintiff's offer of settlement addressed to multiple defendants reciting one aggregate settlement figure for all claims did not allow defendants to individually assess their own exposure and is not valid for sanctions purposes. Wilber v. Fuchs, 158 W (2d) 158, 461 NW (2d) 803 (Ct. App. 1990).
807.01 Annotation
Plaintiff's single offer of settlement to two individual defendant's and insurer of both within the policy limits invoked sanctions under this section as the insurer was only party interested in the settlement and could fully evaluate its exposure. Testa v. Farmers Ins. Exchange, 164 W (2d) 296, 474 NW (2d) 776 (Ct. App. 1991).
807.01 Annotation
Where damages are subject to a statutory limit, costs and interest awarded under this section are in addition to the damage award. Gorman v. Wausau Ins. Cos. 175 W (2d) 320, 499 NW (2d) 245 (Ct. App. 1993).
807.01 Annotation
Insurer was not subject to sanctions under this section where, after initially rejecting plaintiff's offer to settle, new facts resulted in the insurer's submitting its own offer to settle in the same amount. Oliver v. Heritage Mutual Ins. Co. 179 W (2d) 1, 505 NW (2d) 452 (Ct. App. 1993).
807.01 Annotation
Separate offers to the defendant and the defendant's insurer in the same amount which left unclear whether acceptance by the insurer also released the insured did not invoke sanctions under this section when the verdict exceeded the amount of the individual offers. Cue v. Carthage College, 179 W (2d) 175, 507 NW (2d) 109 (Ct. App. 1993).
807.01 Annotation
Common law prejudgment interest and 12% interest under sub. (4) are not to be combined. Erickson v. Gunderson, 183 W (2d) 106, 515 NW (2d) 293 (Ct. App. 1994).
807.01 Annotation
Interest under sub. (4) does not accrue on an award of double costs under sub. (3). American Motorists Insurance Co. v. R & S Meats, Inc. 190 W (2d) 197, 526 NW (2d) 791 (Ct. App. 1994).
807.01 Annotation
A party making a settlement offer must do so in clear and unambiguous terms. A party's mere offer to settle for a specified sum where part of the party's claim had been admitted and already reduced to judgment was ambiguous. Stan's Lumber, Inc. v. Fleming, 196 W (2d) 554, 538 NW (2d) 849 (Ct. App. 1995).
807.01 Annotation
In a case involving a subrogated defendant, failure of an offer to specify whether payment to the subrogated defendant would be made from the settlement proceeds left the defendants unable to fully evaluate their exposure so that the offer was not valid for purposes of sub. (3). Ritt v. Dental Care Associates, S.C. 199 W (2d) 48, 543 NW (2d) 852 (Ct. App. 1995).
807.01 Annotation
A judgment in favor of a plaintiff against a party to whom an offer to settle is made that is equal or larger than the offer entitles the plaintiff to interest under sub. (4) on the amount recovered against the party to whom the offer was made. Blank v. USAA Property & Casualty Ins. Co. 200 W (2d) 270, 546 NW (2d) 512 (Ct. App. 1996).
807.01 Annotation
Under sub. (3) the offer and judgment must be compared exclusive of any costs. Northridge Co. v. W.R. Grace & Co. 205 W (2d) 265, 556 NW (2d) 345 (Ct. App. 1996).
807.01 Annotation
A single offer made to the plaintiff on condition that the plaintiff "indemnify or otherwise satisfy any existing related subrogated claims" invoked sub. (1) where the plaintiff knew the amount of the only subrogated claims and could fully and fairly evaluate the offer. Staehler v. Beuthin, 206 W (2d) 609, 557 NW (2d) 487 (Ct. App. 1996).
807.01 Annotation
In sub. (4) "amount recovered" means that portion of a verdict for which a party is responsible. Nelson v. McLaughlin, 211 W (2d) 487, 565 NW (2d) 123 (1997).
807.01 Annotation
Sub. (1) is procedural in nature and may be applied in federal claims brought in state court unless it defeats a substantial federal right. Duello v. Board of Regents, 220 W (2d) 554, 583 NW (2d) 863 (Ct. App. 1998).
807.01 Annotation
Subs. (3) and (4) may be utilized in diversity actions in federal courts. Dillingham-Healy v. Milwaukee Metro. Sewerage Dist. 796 F Supp. 1191 (1992).
807.01 Annotation
The new Wisconsin rules of civil procedure: Chapters 805—807. Graczyk, 59 MLR 671.
807.01 Annotation
Offers of Judgment in Wisconsin Courts. Crinion. Wis. Law. Feb. 1991.
807.01 Annotation
Meeting Head On: Offers of Settlement and an Insurer's Potential Bad Faith. Warch. Wis. Law. Oct. 1996.
807.02
807.02
Motions, where heard; stay of proceedings. Except as provided in
s. 807.13 or when the parties stipulate otherwise and the court approves, motions in actions or proceedings in the circuit court must be heard within the circuit where the action is triable. Orders out of court, not requiring notice, may be made by the presiding judge of the court in any part of the state. No order to stay proceedings after a verdict, report or finding in any circuit court may be made by a court commissioner. No stay of proceedings for more than 20 days may be granted except upon previous notice to the adverse party.
807.02 History
History: Sup. Ct. Order, 67 W (2d) 585, 742 (1975);
1977 c. 449; Sup. Ct. Order, 141 W (2d) xiii (1987).
807.02 Note
Judicial Council Note, 1988: The section is amended to except telephone hearings on motions from the requirement that motions be heard in the circuit where the action is triable. The amendment also permits the court to hear motions elsewhere upon stipulation of the parties. [Re Order effective Jan. 1, 1988]
807.03
807.03
Orders, how vacated and modified. An order made out of court without notice may be vacated or modified without notice by the judge who made it. An order made upon notice shall not be modified or vacated except by the court upon notice, but the presiding judge may suspend the order, in whole or in part, during the pendency of a motion to the court to modify or vacate the order.
807.03 History
History: Sup. Ct. Order, 67 W (2d) 585, 743 (1975).
807.04
807.04
Proceedings, where held; restriction as to making orders. 807.04(1)(1) Except as provided under
sub. (2), all trials, and all hearings at which oral testimony is to be presented, shall be held in open court. The court may make any order which a judge or court commissioner has power to make. Court commissioners shall have the powers provided in
ch. 753 or by other statute.
807.04(2)
(2) All hearings in which oral testimony is to be presented in an action or special proceeding that is commenced by a prisoner, as defined in
s. 801.02 (7) (a) 2., shall be conducted by telephone, interactive video and audio transmission or other live interactive communication without removing him or her from the facility or institution if his or her participation is required or permitted and if the official having custody of him or her agrees. The court in which the action or special proceeding is commenced shall, when feasible, also allow counsel, witnesses and other necessary persons to participate in the hearing by telephone, interactive video and audio transmission or other live interactive communication. The procedures and policies under
s. 807.13 shall apply to the extent feasible.
807.04 History
History: Sup. Ct. Order, 67 W (2d) 585, 743 (1975);
1977 c. 187 s.
135;
1997 a. 133.
807.05
807.05
Stipulations. No agreement, stipulation, or consent between the parties or their attorneys, in respect to the proceedings in an action or special proceeding shall be binding unless made in court or during a proceeding conducted under
s. 807.13 or
967.08 and entered in the minutes or recorded by the reporter, or made in writing and subscribed by the party to be bound thereby or the party's attorney.
807.05 History
History: Sup. Ct. Order, 67 W (2d) 585, 744 (1975);
1975 c. 218; Sup. Ct. Order, 141 W (2d) xiii (1987).
807.05 Note
Judicial Council Note, 1988: The statute is amended to reflect that stipulations entered into at telephone conferences are no less binding than those made in writing or in court. [Re Order effective Jan. 1, 1988]
807.05 Annotation
Where stipulation did not satisfy this section, summary judgment was improper. Wilharms v. Wilharms, 93 W (2d) 671, 287 NW (2d) 779 (1980).
807.05 Annotation
See note to 801.15, citing Oostburg Bank v. United Savings, 130 W (2d) 4, 386 NW (2d) 53 (1986).
807.05 Annotation
Oral agreement to settle action which doesn't comply with this section is unenforceable. Adelmeyer v. Wis. Elec. Power Co., 135 W (2d) 367, 400 NW (2d) 473 (Ct. App. 1986).
807.05 Annotation
Section does not affect procedural stipulations or judicial admissions which dispense with evidentiary requirements. State v. Aldazabal, 146 W (2d) 267, 430 NW (2d) 614 (Ct. App. 1988).
807.05 Annotation
Subscription requirement is met by stamped facsimile signature; provision does not require hand-written signature. Kocinski v. Home Ins. Co. 154 W (2d) 56, 452 NW (2d) 360 (1990).
807.05 Annotation
Contract law is not binding in construing, enforcing or modifying stipulations, but principles of contract law, including the uniform commercial code, may illuminate a stipulation dispute even to the point of being dispositive. Phone Partners Ltd. v. C. F. Communications, 196 W (2d) 702, 512 NW (2d) 155 (Ct. App. 1995).
807.05 Annotation
Oral settlements are not invariably unenforceable. Gliniciki v. Borden, Inc. 444 F Supp. 619.
807.06
807.06
Copy of paper may be used, when. If any original paper or pleading be lost or withheld by any person the court may authorize a copy thereof to be filed and used instead of the original.
807.06 History
History: Sup. Ct. Order, 67 W (2d) 585, 744 (1975).
807.07
807.07
Irregularities and lack of jurisdiction over the parties waived on appeal; jurisdiction exercised; transfer to proper court. 807.07(1)(1) When an appeal from any court, tribunal, officer or board is attempted to any court and return is duly made to such court, the respondent shall be deemed to have waived all objections to the regularity or sufficiency of the appeal or to the jurisdiction over the parties of the appellate court, unless the respondent moves to dismiss such appeal before taking or participating in any other proceedings in said appellate court. If it appears upon the hearing of such motion that such appeal was attempted in good faith the court may allow any defect or omission in the appeal papers to be supplied, either with or without terms, and with the same effect as if the appeal had been originally properly taken.
807.07(2)
(2) If the tribunal from which an appeal is taken had no jurisdiction of the subject matter and the court to which the appeal is taken has such jurisdiction, the court shall, if it appears that the action or proceeding was commenced in the good faith and belief that the first named tribunal possessed jurisdiction, allow it to proceed as if originally commenced in the proper court and shall allow the pleadings and proceedings to be amended accordingly; and in all cases in every court where objection to its jurisdiction is sustained the cause shall be certified to some court having jurisdiction, provided it appears that the error arose from mistake.
807.07 History
History: Sup. Ct. Order, 67 W (2d) 744;
1975 c. 218; Sup. Ct. Order, 92 W (2d) xiii (1979).
807.07 Note
Judicial Council Committee's Note, 1979: Sub. (1) is amended to clarify that it addresses jurisdiction over the parties, and not the subject matter jurisdiction of the appellate court. Lack of subject matter jurisdiction of an appellate court cannot be waived. Sub. (1) cannot be used to cure defects concerning subject matter jurisdiction of an appellate court. [Re Order effective Jan. 1, 1980]
