809.24 Annotation
The amendment also eliminates the requirement that the court of appeals order a response to a motion for reconsideration prior to amending a decision. Often a motion for reconsideration will bring the court's attention to a minor factual misstatement that may be corrected without the benefit of a response. The court of appeals retains the option to order that a response be filed, if it determines that a response will assist the court. [Re Order No. 02-01 effective January 1, 2003.
809.25
809.25
Rule (Costs and fees). 809.25(1)(a)(a) Costs in a civil appeal are allowed as follows unless otherwise ordered by the court:
809.25(1)(a)1.
1. Against the appellant before the court of appeals when the appeal is dismissed or the judgment or order affirmed.
809.25(1)(a)2.
2. Against the respondent before the court of appeals when the judgment or order is reversed.
809.25(1)(a)3.
3. Against the petitioner before the supreme court when the judgment of the court of appeals is affirmed by the supreme court.
809.25(1)(a)4.
4. Against the respondent before the supreme court when the judgment of the court of appeals is reversed by the supreme court and the costs in the court of appeals are canceled and may be taxed by the supreme court as costs against another party.
809.25(1)(b)1.
1. Cost of printing and assembling the number of copies and briefs and appendices required by the rules, not to exceed the rates generally charged in Dane County, Wisconsin, for offset printing of camera-ready copy and assembling;
809.25(1)(b)3.
3. Cost of the preparation of the transcript of testimony or for appeal bonds;
809.25(1)(b)4.
4. Fees of the clerk of the trial court for preparation of the record on appeal;
809.25(1)(c)
(c) A party seeking to recover costs in the court shall file a statement of the costs within 14 days of the filing of the decision of the court. An opposing party may file, within 11 days after service of the statement, a motion objecting to the statement of costs.
809.25(1)(d)
(d) Costs allowed by the court are taxed by the clerk of the court of appeals irrespective of the filing by a party of a petition for review in the supreme court. In the event of review by the supreme court, costs are taxed by the clerk of the supreme court as set forth in
pars. (a) and
(b). The clerk of the supreme court shall include in the remittitur the costs allowed in the court. The clerk of circuit court shall enter the judgment for costs in accordance with
s. 806.16.
809.25(2)(a)(a) The clerk of the court shall charge the following fees:
809.25(2)(a)1.
1. For filing an appeal, cross-appeal, petition for review, petition to bypass, or other proceeding, $150.
809.25(2)(a)2.
2. For making a copy of a record, paper, or opinion of the court and comparing it to the original, 40 cents for each page.
809.25(2)(a)3.
3. For comparing for certification of a copy of a record, entry or paper, when the copy is furnished by the person requesting its certification, 25 cents for each page.
809.25(2)(a)4.
4. For a certificate and seal, $1, except for an attorney's certificate of good standing, $3.
809.25(2)(b)
(b) The state is exempt from payment of the fees set forth in
par. (a) 1. to
4., except that the clerk is not obligated to supply the state with free copies of opinions.
809.25(2)(c)
(c) The clerk of the court of appeals may refuse to file, record, certify, or render any other service without prepayment of the fees established by this section.
809.25(3)(a)(a) If an appeal or cross-appeal is found to be frivolous by the court, the court shall award to the successful party costs, fees, and reasonable attorney fees under this section. A motion for costs, fees, and attorney fees under this subsection shall be filed no later than the filing of the respondent's brief or, if a cross-appeal is filed, no later than the filing of the cross-respondent's brief. This subsection does not apply to appeals or cross-appeals under
s. 809.107,
809.30, or
974.05.
809.25(3)(b)
(b) The costs, fees and attorney fees awarded under
par. (a) may be assessed fully against the appellant or cross-appellant or the attorney representing the appellant or cross-appellant or may be assessed so that the appellant or cross-appellant and the attorney each pay a portion of the costs, fees and attorney fees.
809.25(3)(c)
(c) In order to find an appeal or cross-appeal to be frivolous under
par. (a), the court must find one or more of the following:
809.25(3)(c)1.
1. The appeal or cross-appeal was filed, used or continued in bad faith, solely for purposes of harassing or maliciously injuring another.
809.25(3)(c)2.
2. The party or the party's attorney knew, or should have known, that the appeal or cross-appeal was without any reasonable basis in law or equity and could not be supported by a good faith argument for an extension, modification or reversal of existing law.
809.25 History
History: Sup. Ct. Order, 83 Wis. 2d xiii (1978); Sup. Ct. Order, 92 Wis. 2d xiii (1979); Sup. Ct. Order, 104 Wis. 2d xi (1981);
1981 c. 316,
317;
1981 c. 390 ss.
220,
252;
1985 a. 29; Sup. Ct. Order, 151 Wis. 2d xvii (1989);
1995 a. 224;
1997 a. 254;
1999 a. 85; Sup. Ct. Order No.
00-02, 2001 WI 39, 242 Wis. 2d xxvii.
809.25 Note
Judicial Council Committee's Note, 1978: Most of the provisions of former ss. 251.23 and 251.90 are retained. The major change is to provide that execution for costs in the Court of Appeals is to be had in the trial court in accordance with Rule 806.16 rather than in the Court of Appeals. The Judicial Council did not review the adequacy of the fees and thus made no recommendations on them. It is suggested, however, that many of the fees appear to be out of date and should be revised. This should be done in connection with a general review of fees in all courts. [Re Order effective July 1, 1978]
809.25 Note
Judicial Council Committee's Note, 1979: Sub. (1) (a) and (d), which governs costs that are allowed in an appeal to the Court of Appeals or a review by the Supreme Court, have been amended for purposes of clarification.
809.25 Annotation
A provision has been added to clarify that costs are taxed by the clerk in the Court of Appeals irrespective of the filing of a petition for review in the Supreme Court. In the event of review by the Supreme Court, a provision has been added specifically stating that costs are allowed against a petitioner in a case before the Supreme Court when the decision of that court affirms a judgment of the Court of Appeals.
809.25 Annotation
An additional clarifying provision has been added allowing costs against a respondent in a case before the Supreme Court when the petitioner before the Supreme Court has achieved reversal of a judgment of the Court of Appeals. The provision further states that the costs that were allowed when the case was originally decided by the Court of Appeals are canceled. [Re Order effective Jan. 1, 1980]
809.25 Note
Judicial Council Committee's Note, 1981: Sub. (2) (a) 1. is amended to correct the reference from a petition to appeal to a petition for review. The supreme court reviews the decisions of the court of appeals. [Re Order effective Jan. 1, 1982]
809.25 Note
Judicial Council Note, 2001: The 7-day time limit in sub. (1) (c) was changed to 11 days. Please see the comment to s. 808.07 (6) concerning time limits. [Re Order No. 00-02 effective July 1, 2001]
809.25 Annotation
An appeal was frivolous when an assertion of trial court error was without any reasonable basis in law or equity and there was no argument that existing law should have been extended, modified, or reversed. In Matter of Estate of Koenigsmark,
119 Wis. 2d 394,
351 N.W.2d 169 (Ct. App. 1984).
809.25 Annotation
Tax protesters appealing without counsel were properly assessed costs under sub. (3) (c) 2. Tracy v. Department of Revenue,
133 Wis. 2d 151,
394 N.W.2d 756 (Ct. App. 1986).
809.25 Annotation
Restricting access to courts as a sanction for frivolous action was appropriate when the order was narrowly tailored to balance the interests of public access to courts, res judicata, and the public's right not to have frivolous litigation be a drain on public resources. Minniecheske v. Griesbach,
161 Wis. 2d 743,
468 N.W.2d 760 (Ct. App. 1991).
809.25 Annotation
Asking the court of appeals to reweigh the testimony of witnesses and to reach a conclusion regarding credibility contrary to that reached by a trial judge was frivolous. Lessor v. Wangelin,
221 Wis. 2d 659,
586 N.W.2d 1 (Ct. App. 1998).
809.25 Annotation
A frivolous appeal filed by a non-lawyer results in the same harm as if it were filed by a lawyer. It would not be fair or logical to say that had a lawyer filed the appeal costs would have been awarded but to deny recovery because the appeal was presented by a pro se litigant. Holz v. Busy Bees Contracting, Inc.
223 Wis. 2d 598,
589 N.W.2d 633 (Ct. App. 1998).
809.25 Annotation
While only an appellate court can find an appeal frivolous, the case may be remanded to the circuit to determine the amount of attorney fees to be awarded. Lucarelli v. Vilas County, 2000 WI App 157,
238 Wis. 2d 84,
616 N.W.2d 153.
809.25 Annotation
In addition to an order to pay the respondent's costs, fees, and attorney fees, an appellant whose appeal was found frivolous after his brief was stricken for being offensive, scurrilous, and inappropriate was barred from filing any future proceedings in the court of appeals and the circuit court arising from, relating to, or involving the respondents. Puchner v. Hepperla, 2001 WI App 50,
241 Wis. 2d 545,
625 N.W.2d 609.
809.25 Annotation
The circuit court's award of fees to the respondent due to the appellant's overlitigating in the case by the filing multiple frivolous issues on appeal, in violation of the circuit court's order, was not prevented by a court of appeals finding that no fees could be awarded under sub. (3). Zhang v. Yu, 2001 WI App 267,
248 N.W.2d 913,
637 N.W.2d 754.
809.26
809.26
Rule (Remittitur). 809.26(1)(1) The clerk of the court of appeals shall transmit to the circuit court the judgment and decision or order of the court and the record in the case filed pursuant to
s. 809.15 31 days after the filing of the decision or order of the court, or as soon thereafter as practicable. If a petition for review is filed pursuant to
s. 809.62, the transmittal is stayed until the supreme court rules on the petition. If a motion for reconsideration is filed under
s. 809.24, the transmittal is stayed until the court files an order denying the motion, or files an amended decision or order, and the subsequent expiration of any period for filing a petition for review.
809.26(2)
(2) If the supreme court grants a petition for review of a decision of the court of appeals, the supreme court upon filing its decision shall transmit to the trial court the judgment and opinion of the supreme court and the complete record in the case unless the case is remanded to the court of appeals with specific instructions.
Effective date note
History: Sup. Ct. Order, 83 Wis. 2d xiii (1978); Sup. Ct. Order, 92 Wis. 2d xiii (1979);
1981 c. 390 s.
252; Sup. Ct. Order No.
00-02, 2001 WI 39, 242 Wis. 2d xxvii; Sup. Ct. Order No.
02-01, 2002 WI 120, filed 10-31-02, eff. 1-1-03.
809.26 Note
Judicial Council Committee's Note, 1978: Former s. 817.35 is embodied in this section except that the time for issuance of the remittitur is reduced from 60 to 31 days. [Re Order effective July 1, 1978]
809.26 Note
Judicial Council Committee's Note, 1979: This section is amended by creating a sub. (2) that specifically authorizes the Supreme Court after filing its decision in the review of a decision from the Court of Appeals to remit directly to the trial court the complete record of the case without the necessity of returning the case to the Court of Appeals for remittitur to the trial court. The only exception to this new procedure will occur when the Supreme Court remands a case to the Court of Appeals with some specific instructions that the Court of Appeals is required to follow. [Re Order effective Jan. 1, 1980].
809.26 Note
Judicial Council Note, 2002: Subsection (1) is amended to permit the clerk of courts some flexibility in the 31-day remittitur deadline to accommodate workload fluctuation. By Supreme Court Order 00-02, 2001 WI 39, "within" was added immediately preceding "31 days." The Judicial Council had not intended to suggest changing the substance of existing time parameters for remittitur, when it petitioned for that amendment, but merely proposed the additional word for ease of reading. Since that amendment, it has been argued that the addition of "within" permits remittitur prior to the expiration of the 31-day period. However, the 31-day period coincides with the time limit for filing a petition for review. Absent stipulation among the parties that no petition for review will be filed, remittitur should not occur before the expiration of the petition for review deadline. [Re Order No. 02-01 effective January 1, 2003]
809.26 Annotation
An appellate court's jurisdiction ceases upon remittitur in the absence of inadvertence, fraud, or void judgment. The inadvertence exception applies to the act of remitting the record itself, which must be inadvertently done. State ex rel. Fuentes v. Court of Appeals,
225 Wis. 2d 446,
593 N.W.2d 48 (1999).
APPEAL PROCEDURE IN COURT OF APPEALS IN
CRIMINAL AND CH. 48, 51, 55, AND 938 CASES
809.30
809.30
Rule (Appeals in criminal, ch. 48, 51, 55, and 938 cases). 809.30(1)(1)
Definitions. In this subchapter:
809.30(1)(a)
(a) "Final adjudication" means the entry of a final judgment or order by the circuit court in a
ch. 48,
51,
55, or
938 case, other than a termination of parental rights case under
s. 48.43 or a parental consent to abortion case under
s. 48.375 (7).
809.30(1)(b)1.
1. A defendant seeking postconviction relief in a criminal case.
809.30(1)(b)2.
2. A party, other than the state, seeking postdisposition relief in a case under
ch. 48, other than a termination of parental rights case under
s. 48.43 or a parental consent to abortion case under
s. 48.375 (7).
809.30(1)(b)3.
3. A party, other than the state, seeking postdisposition relief in a case under
ch. 938.
809.30(1)(b)4.
4. A subject individual or ward seeking postdisposition relief in a case under
ch. 51 or
55.
809.30(1)(d)
(d) "Postdisposition relief" means an appeal or a motion for postdisposition relief from a circuit court's final adjudication.
809.30(1)(e)
(e) "Prosecutor" means a district attorney, corporation counsel, or other attorney authorized by law to prosecute a criminal case or a case under
ch. 48,
51,
55, or
938.
809.30(1)(f)
(f) "Sentencing" means the imposition of a sentence, a fine, or probation in a criminal case.
809.30(2)
(2) Appeal; postconviction or postdisposition motion. 809.30(2)(a)(a) Appeal procedure; counsel to continue. A person seeking postconviction relief in a criminal case; a person seeking postdisposition relief in a case under
ch. 48 other than a termination of parental rights case under
s. 48.43 or a parental consent to abortion case under
s. 48.375 (7); or a person seeking postdisposition relief in a case under
ch. 51,
55, or
938 shall comply with this section. Counsel representing the person at sentencing or at the time of the final adjudication shall continue representation by filing a notice under
par. (b) if the person desires to pursue postconviction or postdisposition relief unless counsel is discharged by the person or allowed to withdraw by the circuit court before the notice must be filed.
809.30(2)(b)
(b) Notice of intent to pursue postconviction or postdisposition relief. Within 20 days after the date of sentencing or final adjudication, the person shall file in circuit court and serve on the prosecutor and any other party a notice of intent to pursue postconviction or postdisposition relief. The notice shall include all of the following:
809.30(2)(b)2.
2. An identification of the judgment or order from which the person intends to seek postconviction or postdisposition relief and the date on which the judgment or order was entered.
809.30(2)(b)3.
3. The name and address of the person and his or her trial counsel.
809.30(2)(b)4.
4. Whether the person's trial counsel was appointed by the state public defender and, if so, whether the person's financial circumstances have materially improved since the date on which his or her indigency was determined.
809.30(2)(b)5.
5. Whether the person requests the state public defender to appoint counsel for purposes of postconviction or postdisposition relief.
809.30(2)(b)6.
6. Whether a person who does not request the state public defender to appoint counsel will represent himself or herself or will be represented by retained counsel. If the person has retained counsel to pursue postconviction or postdisposition relief, counsel's name and address shall be included.
809.30(2)(c)
(c) Clerk to send materials. Within 5 days after a notice under
par. (b) is filed, the clerk of circuit court shall:
809.30(2)(c)1.
1. If the person requests representation by the state public defender for purposes of postconviction or postdisposition relief, send to the state public defender's appellate intake office a copy of the notice that shows the date on which it was filed or entered, a copy of the judgment or order specified in the notice that shows the date on which it was filed or entered, a list of the court reporters for each proceeding in the action in which the judgment or order was entered, and a list of those proceedings in which a transcript has been filed with the clerk of circuit court.
809.30(2)(c)2.
2. If the person does not request representation by the state public defender, send or furnish to the person, if appearing without counsel, or to the person's attorney if one has been retained, a copy of the judgment or order specified in the notice that shows the date on which it was filed or entered, a list of the court reporters for each proceeding in the action in which the judgment or order was entered, and a list of those proceedings in which a transcript has been filed with the clerk of circuit court.
809.30(2)(d)
(d) Indigency redetermination. Except as provided in this paragraph, whenever a person whose trial counsel is appointed by the state public defender files a notice under
par. (b) requesting public defender representation for purposes of postconviction or postdisposition relief, the prosecutor may, within 5 days after the notice is served and filed, file in the circuit court and serve upon the state public defender a request that the person's indigency be redetermined before counsel is appointed or transcripts are requested. This paragraph does not apply to a child or juvenile who is entitled to be represented by counsel under
s. 48.23 or
938.23.
809.30(2)(e)
(e) State public defender appointment of counsel; transcript and circuit court case record request. Within 30 days after the state public defender appellate intake office receives the materials from the clerk of circuit court under
par. (c), the state public defender shall appoint counsel for the person and request a transcript of the reporter's notes and a copy of the circuit court case record, except that if the person's indigency must first be determined or redetermined the state public defender shall do so, appoint counsel, and request transcripts and a copy of the circuit court case record within 50 days after the state public defender appellate intake office receives the material from the clerk of circuit court under
par. (c).
809.30(2)(f)
(f) Person not represented by public defender; transcript and circuit court case record request. A person who does not request representation by the state public defender for purposes of postconviction or postdisposition relief shall request a transcript of the reporter's notes, and may request a copy of the circuit court case record, within 30 days after filing a notice under
par. (b). A person who is denied representation by the state public defender for purposes of postconviction or postdisposition relief shall request a transcript of the reporter's notes, and may request a copy of the circuit court case record, within 90 days after filing a notice under
par. (b).
809.30(2)(fm)
(fm) Transcript and circuit court case record request in chs. 48 and 938 proceedings. A child or juvenile who has filed a notice of intent to pursue relief from a judgment or order entered in a
ch. 48 or
938 proceeding shall be furnished at no cost a transcript of the proceedings or as much of the transcript as is requested, and may request a copy of the circuit court case record. To obtain the transcript and circuit court case record at no cost, an affidavit must be filed stating that the person who is legally responsible for the child's or juvenile's care and support is financially unable or unwilling to purchase the transcript and a copy of the circuit court case record.
809.30(2)(g)
(g) Filing and service of transcript and circuit court case record. 809.30(2)(g)1.1. The clerk of circuit court shall serve a copy of the circuit court case record on the person within 60 days after receipt of the request for the circuit court case record.
809.30(2)(g)2.
2. The court reporter shall file the transcript with the circuit court and serve a copy of the transcript on the person within 60 days of the request for the transcript. Within 20 days after the request for a transcript of postconviction or postdisposition proceedings brought under
sub. (2) (h), the court reporter shall file the original with the circuit court and serve a copy of that transcript on the person. The reporter may seek an extension under
s. 809.11 (7) for filing and serving the transcript.
809.30(2)(h)
(h) Notice of appeal, postconviction or postdisposition motion. The person shall file in circuit court and serve on the prosecutor and any other party a notice of appeal or motion seeking postconviction or postdisposition relief within 60 days after the later of the service of the transcript or circuit court case record. The person shall file a motion for postconviction or postdisposition relief before a notice of appeal is filed unless the grounds for seeking relief are sufficiency of the evidence or issues previously raised. A postconviction or postdisposition motion under this section may not be accompanied by a notice of motion and is made when filed. A notice of appeal filed under this section shall conform to the requirements set forth in
s. 809.10.
