805.09 Juries of fewer than 12; five-sixths verdict.
805.10 Examination of witnesses; arguments.
805.11 Objections; exceptions.
805.13 Jury instructions; note taking; form of verdict.
805.14 Motions challenging sufficiency of evidence; motions after verdict.
805.16 Time for motions after verdict.
805.17 Trial to the court.
805.18 Mistakes and omissions; harmless error.
Ch. 805 Note
Note: Chapter 805 was created by Sup. Ct. Order,
67 Wis. 2d 585, 688 (1975), which contains Judicial Council Committee notes explaining each section. Statutes prior to the 1983-84 edition also have these notes.
805.01
805.01
Jury trial of right. 805.01(2)
(2) Demand. Any party entitled to a trial by jury or by the court may demand a trial in the mode to which entitled at or before the scheduling conference or pretrial conference, whichever is held first. The demand may be made either in writing or orally on the record.
805.01(3)
(3) Waiver. The failure of a party to demand in accordance with
sub. (2) a trial in the mode to which entitled constitutes a waiver of trial in such mode. The right to trial by jury is also waived if the parties or their attorneys of record, by written stipulation filed with the court or by an oral stipulation made in open court and entered in the record, consent to trial by the court sitting without a jury. A demand for trial by jury made as herein provided may not be withdrawn without the consent of the parties.
805.01 History
History: Sup. Ct. Order,
67 Wis. 2d 585, 689 (1975);
1975 c. 218; Sup. Ct. Order, 112 Wis. 2d xi (1983);
1983 a. 192.
805.01 Note
Judicial Council Committee Note, 1983: The time deadline for demanding a jury trial is the scheduling conference where that occurs before or in lieu of the pretrial conference because knowledge of the mode of trial is required for proper scheduling. [Re Order effective July 1, 1983]
805.01 Annotation
A legal counterclaim in an equitable action does not necessarily entitle the counterclaimant to a jury trial. An amendment by the plaintiff from equity to law does not necessarily entitle the defendant to a jury trial if the equitable action was brought in good faith. Tri-State Home Improvement Co. v. Mansavage,
77 Wis. 2d 648,
253 N.W.2d 474 (1977).
805.01 Annotation
A party is entitled, as a matter of right, to a jury trial on a question of fact if that issue is retried, regardless of an earlier waiver. Tesky v. Tesky,
110 Wis. 2d 205,
327 N.W.2d 706 (1983).
805.01 Annotation
Under the facts of the case, telephone testimony was not permissible. Town of Geneva v. Tills,
129 Wis. 2d 167,
384 N.W.2d 701 (1986).
805.01 Annotation
When collateral estoppel compels raising a counterclaim in an equitable action, that compulsion does not result in the waiver of the right to a jury trial. Norwest Bank v. Plourde,
185 Wis. 2d 377,
518 N.W.2d 265 (Ct. App. 1994).
805.01 Annotation
The new Wisconsin rules of civil procedure: Chapters 805—807. Graczyk, 59 MLR 671.
805.01 Annotation
See also the notes to Article I, section 5 of the Wisconsin Constitution.
805.02
805.02
Advisory jury and trial by consent. 805.02(1)
(1) In all actions not triable of right by a jury, the court upon motion or on its own initiative may try any issue with an advisory jury.
805.02(2)
(2) With the consent of both parties, the court may order a trial with a jury whose verdict has the same effect as if trial by jury had been a matter of right.
805.02 History
History: Sup. Ct. Order,
67 Wis. 2d 585, 690 (1975).
805.03
805.03
Failure to prosecute or comply with procedure statutes. For failure of any claimant to prosecute or for failure of any party to comply with the statutes governing procedure in civil actions or to obey any order of court, the court in which the action is pending may make such orders in regard to the failure as are just, including but not limited to orders authorized under
s. 804.12 (2) (a). Any dismissal under this section operates as an adjudication on the merits unless the court in its order for dismissal otherwise specifies for good cause shown recited in the order. A dismissal on the merits may be set aside by the court on the grounds specified in and in accordance with
s. 806.07. A dismissal not on the merits may be set aside by the court for good cause shown and within a reasonable time.
805.03 History
History: Sup. Ct. Order,
67 Wis. 2d 585, 690 (1975).
805.03 Annotation
In order to demonstrate that a dismissal order based on failure to prosecute was and abuse of discretion, the aggrieved party must show a clear and justifiable excuse for the delay. Trispel v. Haefer,
89 Wis. 2d 725,
279 N.W.2d 242 (1979).
805.03 Annotation
A judgment dismissing an action was void for lack of advance actual notice of dismissal that defined the "failure to prosecute" standard. Neylan v. Vorwald,
124 Wis. 2d 85,
368 N.W.2d 648 (1985).
805.03 Annotation
Dismissal for failure to prosecute within a year of filing required actual or constructive notice of the applicable standards. Rupert v. Home Mutual Insurance Co.,
138 Wis. 2d 1,
405 N.W.2d 661 (Ct. App. 1987).
805.03 Annotation
Dismissal under this section is presumptively with prejudice. Where the plaintiff failed to show "good cause" for delay, the appeals court erred in dismissing without prejudice. Marshall-Wisconsin v. Juneau Square,
139 Wis. 2d 112,
406 N.W.2d 764 (1987).
805.03 Annotation
The court of appeals' remand "for trial" after reversal of a summary judgement order did not mandate the court to schedule and hold a trial. Dismissal for failure to prosecute was not an abuse of discretion. Prahl v. Brosamle,
142 Wis. 2d 658,
420 N.W.2d 372 (Ct. App. 1987).
805.03 Annotation
When conduct in failing to comply with a court order is egregious and without clear and justifiable excuse, the court may, in its discretion, order dismissal. Johnson v. Allis Chalmers Corp.
162 Wis. 2d 261,
470 N.W.2d 859 (1991).
805.03 Annotation
Ordering a criminal defendant to pay the state's trial expenses upon mistrial for violation of a pretrial order was authorized by this section. State v. Heyer,
174 Wis. 2d 164,
496 N.W.2d 779 (Ct. App. 1993).
805.03 Annotation
In cases that do not fit squarely within this statute, a trial court has certain inherent powers to sanction the parties including the awarding of attorney fees. Schaefer v. Northern Assurance Co.
182 Wis. 2d 148,
513 N.W.2d 16 (Ct. App. 1994).
805.03 Annotation
A party's failure to appear at a scheduled hearing, after writing the court indicating that unless it heard otherwise from the court it would consider itself excused, was insufficient to excuse the party's appearance and was grounds for dismissal of the party under this section. Buchanan v. General Casualty Co.
191 Wis. 2d 1,
528 N.W.2d 457 (Ct. App. 1995).
805.03 Annotation
The trial court erred in not considering other less severe sanctions before dismissing an action for failure to comply with a demand for discovery when no bad faith was found. Hudson Diesel, Inc. v. Kenall,
194 Wis. 2d 532,
535 N.W.2d 65 (Ct. App. 1995).
805.03 Annotation
Default judgment entered as a sanction is not governed by 806.02 and does not require a full evidentiary hearing if damages are contested. The proper form of hearing on damages is left to the trial court's discretion. Chevron Chemical Co. v. Deloitte & Touche LLP,
207 Wis. 2d 43,
557 N.W.2d 775 (1997).
805.03 Annotation
Sections 802.10 (7) and 805.03 apply in criminal cases. A court has power to sanction a tardy attorney under these sections. Failure to delineate the reasons for the sanctions is an erroneous exercise of discretion. Anderson v. Circuit Court for Milwaukee County,
219 Wis. 2d 1,
578 N.W.2d 533 (1998).
805.03 Annotation
If the constitution or statutes require proof before the circuit court can enter a particular judgment or order, the court cannot enter the judgment or order without the appropriate showing. The circuit court may determine that a party's action or inaction provides adequate cause for sanctions against that party. But that does not allow the court to dispense with any constitutional or statutory burden of proof that must be satisfied prior to entering a judgment or order. Evelyn C.R. v. Tykila S. 2001 WI 110,
246 Wis. 2d 1,
629 N.W.2d 768.
805.03 Annotation
The trial court abused its discretion by ordering the defendant in a civil suit to forego its rights to insurance coverage for punitive damages when the issue of rights to insurance coverage was not before the court. City of West Allis v. WEPCO, 2001 WI App 266,
248 Wis. 2d 10,
635 N.W.2d 873.
805.03 Annotation
Circuit courts have inherent authority to sanction by dismissal a party who has attempted to suborn perjury from a witness. In assessing the severity of the misconduct and need for an appropriate sanction, a trial court was within its authority to consider a previous attempt to suborn perjury in another case, in addition to the attempt in the case before it. Schultz v. Sykes, 2001 WI App 255,
248 Wis. 2d 746,
638 N.W.2d 604.
805.03 Annotation
The American Rule does not bar courts from exercising their inherent power to assess attorney fees, and when a court does so, the limitations of fee awards under s. 814.025 do not control. Schultz v. Sykes, 2001 WI App 255,
248 Wis. 2d 746,
638 N.W.2d 604.
805.04
805.04
Voluntary dismissal: effect thereof. 805.04(1)
(1)
By plaintiff; by stipulation. An action may be dismissed by the plaintiff without order of court by serving and filing a notice of dismissal at any time before service by an adverse party of responsive pleading or motion or by the filing of a stipulation of dismissal signed by all parties who have appeared in the action. Unless otherwise stated in the notice of dismissal or stipulation, the dismissal is not on the merits, except that a notice of dismissal operates as an adjudication on the merits when filed by a plaintiff who has once dismissed in any court an action based on or including the same claim.
805.04(2)
(2) By order of court. Except as provided in
sub. (1), an action shall not be dismissed at the plaintiff's instance save upon order of court and upon such terms and conditions as the court deems proper. Unless otherwise specified in the order, a dismissal under this subsection is not on the merits.
805.04(3)
(3) Counterclaim, cross-claim and 3rd party claim. This section applies to the voluntary dismissal of any counterclaim, cross-claim, or 3rd party claim. A voluntary dismissal by the claimant alone shall be made before a responsive pleading is served, or if there is none, before the introduction of evidence at the trial or hearing.
805.04(4)
(4) Costs of previously dismissed action. If a plaintiff who has once dismissed an action in any court commences an action based upon or including the same claim against the same defendant, the court may make such order for the payment of costs of the action previously dismissed as it deems proper and may stay proceedings in the action until the plaintiff has complied with the order.
805.04 History
History: Sup. Ct. Order,
67 Wis. 2d 585, 691 (1975).
805.04 Annotation
Assessment of attorney's fees as a condition of voluntary dismissal without prejudice was within the trial court's discretion. Dunn v. Fred A. Mikkelson, Inc.
88 Wis. 2d 369,
276 N.W.2d 748 (1979).
805.04 Annotation
Voluntary dismissal with prejudice rarely entitles the defendant to an award of fees and costs. Bishop v. Blue Cross & Blue Shield,
145 Wis. 2d 315,
426 N.W.2d 114 (Ct. App. 1988).
805.04 Annotation
A condemnee may voluntarily dismiss an appeal to a circuit court pursuant to s. 805.04 without court order. Dickie v. City of Tomah,
160 Wis. 2d 20,
465 N.W.2d 262 (Ct. App. 1990).
805.04 Annotation
If any adverse party to an action files a responsive pleading prior to the time that the plaintiff attempts to dismiss the action under sub. (1), a voluntary dismissal without prejudice is no longer obtainable. Gowan v. McClure,
185 Wis. 2d 903,
519 N.W.2d 692 (Ct. App. 1994).
805.04 Annotation
The trial court did not abuse its discretion in granting plaintiff's motion for dismissal without prejudice in order that the plaintiff could refile in an attempt to take advantage of a new statutory enactment. The prejudice this section protects against is that of putting the defendant through the expense of a lawsuit without being able to obtain a final determination on the merits, not from being disadvantaged by a legislative policy change. Estate of Rita Engebose v. Morraine Ridge Limited Partnership,
228 Wis. 2d 860,
598 N.W.2d 584 (Ct. App. 1999).
805.04 Annotation
If doubt exists regarding the finality of an order of dismissal, the court may look beyond the words "with prejudice" to determine if the dismissal was meant to be conclusive. Brye v. Brakebush,
32 F.3d 1179 (1994).
805.05
805.05
Consolidation; separate trials. 805.05(1)(a)(a) When actions which might have been brought as a single action under
s. 803.04 are pending before the court, it may order a joint hearing or trial of any or all of the claims in the actions; it may order all the actions consolidated; and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.
805.05(1)(b)
(b) When actions which might have been brought as a single action under
s. 803.04 are pending before different courts, any such action may be transferred upon motion of any party or of the court to another court where the related action is pending. A conference involving both judges and all counsel may be convened on the record as prescribed by
s. 807.13 (3). Transfer under this paragraph shall be made only by the joint written order of the transferring court and the court to which the action is transferred.
805.05(2)
(2) Separate trials. The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition or economy, or pursuant to
s. 803.04 (2) (b), may order a separate trial of any claim, cross-claim, counterclaim or 3rd party claim, or of any number of claims, always preserving inviolate the right of trial in the mode to which the parties are entitled.
805.05 History
History: Sup. Ct. Order,
67 Wis. 2d 585, 692 (1975); Sup. Ct. Order, 141 Wis. 2d xiii (1987).
805.05 Note
Judicial Council Note, 1988: Sub. (1) (b) is amended by allowing conferences regarding consolidation of actions to be conducted by telephone conference. [Re Order effective Jan. 1, 1988]
805.05 Annotation
The trial court's order to bifurcate the issues of liability and damages and to try the separate issues before separate juries contravened sub. (2) and cannot be reconciled with the requirement of s. 805.09 (2) that the same five-sixths of the jury must agree on all questions necessary to sustain a verdict. Waters v. Pertzborn, 2001 WI 62,
243 Wis. 2d 703,
627 N.W.2d 497.
805.06(1)(1) A court in which an action is pending may appoint a referee who shall have such qualifications as the court deems appropriate. The fees to be allowed to a referee shall be fixed by the court and shall be charged upon such of the parties or paid out of any fund or subject matter of the action, which is in the custody and control of the court, as the court may direct. The referee shall not retain the referee's report as security for compensation; but if the party ordered to pay the fee allowed by the court does not pay it after notice and within the time prescribed by the court, the referee is entitled to a writ of execution against the delinquent party.
805.06(2)
(2) A reference shall be the exception and not the rule. In actions to be tried by a jury, a reference shall be made only when the issues are complicated; in actions to be tried without a jury, save in matters of account and of difficult computation of damages, a reference shall be made only upon a showing that some exceptional condition requires it.
805.06(3)
(3) The order of reference to the referee may specify or limit the referee's powers and may direct the referee to report only upon particular issues or to do or perform particular acts or to receive and report evidence only and may fix the time and place for beginning and closing the hearings and for the filing of the referee's report. Subject to the specifications and limitations stated in the order, the referee has and shall exercise the power to regulate all proceedings in every hearing before the referee and to do all acts and take all measures necessary or proper for the efficient performance of duties under the order. The referee may require the production of evidence upon all matters embraced in the reference, including the production of all books, papers, vouchers, documents, and writings applicable thereto. The referee may rule upon the admissibility of evidence unless otherwise directed by the order of reference and has the authority to put witnesses on oath and may personally examine them and may call the parties to the action and examine them upon oath. When a party so requests, the referee shall make a record of the evidence offered and excluded in the same manner and subject to the same limitations as a court sitting without a jury.
805.06(4)(a)(a) When a reference is made, the clerk shall forthwith furnish the referee with a copy of the order of reference. Upon receipt thereof unless the order of reference otherwise provides, the referee shall forthwith set a time and place for the first meeting of the parties or their attorneys to be held within 20 days after the date of the order of reference and shall notify the parties or their attorneys. It is the duty of the referee to proceed with all reasonable diligence. Any party, on notice to the parties and the referee, may apply to the court for an order requiring the referee to speed the proceedings and to make the report. If a party fails to appear at the time and place appointed, the referee may proceed ex parte or may adjourn the proceedings to a future day, giving notice to the absent party of the adjournment.
805.06(4)(b)
(b) The parties may procure the attendance of witnesses before the referee by the issuance and service of subpoenas. If without adequate excuse a witness fails to appear to give evidence, the witness may be punished as for a contempt and be subjected to the consequences, penalties, and remedies provided in
ss. 885.11 and
885.12.
805.06(4)(c)
(c) When matters of accounting are in issue, the referee may prescribe the form in which the accounts shall be submitted and in any proper case may require or receive in evidence a statement by a certified public accountant who is called as a witness. Upon objection of a party to any of the items thus submitted or upon a showing that the form of statement is insufficient, the referee may require a different form of statement to be furnished, or the accounts or specific items thereof to be proved by oral examination of the accounting parties or upon written interrogatories or in such other manner as the referee directs.
805.06(5)(a)(a) The referee shall prepare a report upon the matters submitted by the order of reference and, if required to make findings of fact and conclusions of law, the referee shall set them forth in the report. The referee shall file the report with the clerk of the court and in an action to be tried without a jury, unless otherwise directed by the order of reference, shall file with it a transcript of the proceedings and of the evidence and the original exhibits. The clerk shall forthwith mail to all parties notice of the filing.
805.06(5)(b)
(b) In an action to be tried without a jury the court shall accept the referee's findings of fact unless clearly erroneous. Within 10 days after being served with notice of the filing of the report any party may serve written objections thereto upon the other parties. Application to the court for action upon the report and upon objections thereto shall be by motion and upon notice. The court after hearing may adopt the report or may modify it or may reject it in whole or in part or may receive further evidence or may recommit it with instruction.
805.06(5)(c)
(c) In an action to be tried by a jury the referee shall not be directed to report the evidence. The referee's findings upon the issues submitted are admissible as evidence of the matters found and may be read to the jury, subject to the ruling of the court upon any objections in point of law which may be made to the report.
805.06(5)(d)
(d) The effect of a referee's report is the same whether or not the parties have consented to the reference; but, when the parties stipulate that a referee's findings of fact shall be final, only questions of law arising upon the report shall thereafter be considered.
805.06 History
History: Sup. Ct. Order,
67 Wis. 2d 585, 693 (1975);
1975 c. 218.
805.06 Annotation
The trial court properly refused to admit additional evidence on an issue of fact that the referee was appointed to resolve. Kleinstick v. Daleiden,
71 Wis. 2d 432,
238 N.W.2d 714 (1976).
805.07(1)(1)
Issuance and service. Subpoenas shall be issued and served in accordance with
ch. 885. A subpoena may also be issued by any attorney of record in a civil action or special proceeding to compel attendance of witnesses for deposition, hearing or trial in the action or special proceeding.
805.07(2)
(2) Subpoena requiring the production of material. 805.07(2)(a)(a) A subpoena may command the person to whom it is directed to produce the books, papers, documents or tangible things designated therein.
805.07(2)(b)
(b) Notice of a third-party subpoena issued for discovery purposes shall be provided to all parties at least 10 days before the scheduled deposition in order to preserve their right to object. If a third-party subpoena requests the production of books, papers, documents or tangible things that are within the scope of discovery under
s. 804.01 (2) (a), those objects shall not be provided before the time and date specified in the subpoena. The provisions under this paragraph apply unless all of the parties otherwise agree.
805.07(3)
(3) Protective orders. Upon motion made promptly and in any event at or before the time specified in the subpoena for compliance therewith, the court may (a) quash or modify the subpoena if it is unreasonable and oppressive or (b) condition denial of the motion upon the advancement by the person in whose behalf the subpoena is issued of the reasonable cost of producing the books, papers, documents, or tangible things designated therein.
