2003 Chapter 807

807.01 Annotation While the inclusion of a reference to this section is preferable, a settlement offer that should reasonably be understood as an offer pursuant to s. 807.01 is sufficient to invoke its provisions. Bauer v. Piper Industries, Inc. 154 Wis. 2d 758, 454 N.W.2d 28 (Ct. App. 1990).

807.01 Annotation A plaintiff's offer of settlement addressed to multiple defendants reciting one aggregate settlement figure for all claims did not allow the defendants to individually assess their own exposure and is not valid for sanctions purposes. Wilber v. Fuchs, 158 Wis. 2d 158, 461 N.W.2d 803 (Ct. App. 1990).

807.01 Annotation A plaintiff's single offer of settlement to two individual defendant's and the insurer of both, within the policy limits, invoked sanctions under this section as the insurer was the only party interested in the settlement and could fully evaluate its exposure. Testa v. Farmers Ins. Exchange, 164 Wis. 2d 296, 474 N.W.2d 776 (Ct. App. 1991).

807.01 Annotation When 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 Wis. 2d 320, 499 N.W.2d 245 (Ct. App. 1993).

807.01 Annotation An insurer was not subject to sanctions under this section when, after initially rejecting the 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 Insurance Co. 179 Wis. 2d 1, 505 N.W.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 Wis. 2d 175, 507 N.W.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 Wis. 2d 106, 515 N.W.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 Wis. 2d 197, 526 N.W.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 when a part of the party's claim had been admitted and already reduced to judgment was ambiguous. Stan's Lumber, Inc. v. Fleming, 196 Wis. 2d 554, 538 N.W.2d 849 (Ct. App. 1995), 94-1258, 95-0004.

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 Wis. 2d 48, 543 N.W.2d 852 (Ct. App. 1995), 94-3344.

807.01 Annotation A judgment against a defendant to whom an offer to settle was made that is equal to 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 Wis. 2d 270, 546 N.W.2d 512 (Ct. App. 1996), 95-1806.

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 Wis. 2d 267, 556 N.W.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) when the plaintiff knew the amount of the only subrogated claims and could fully and fairly evaluate the offer. Staehler v. Beuthin, 206 Wis. 2d 609, 557 N.W.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 Wis. 2d 487, 565 N.W.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 Wis. 2d 554, 583 N.W.2d 863 (Ct. App. 1998).

807.01 Annotation An insurer has a fiduciary duty to clarify a settlement offer made to it that is ambiguous with respect to whether the offer applies to only the insurer or to both the insurer and the insured. Failure to clarify the ambiguity results in a valid offer under this section. Prosser v. Leuck, 225 Wis. 2d 126, 592 N.W.2d 178 (1999).

807.01 Annotation Sub. (3) provides no exceptions for assessments of double costs. Costs associated with determining coverage are subject to doubling under sub. (3). Prosser v. Lueck, 225 Wis. 2d 126, 592 N.W.2d 178 (1999).

807.01 Annotation The 10-day period in sub. (1) was tolled when a stay was entered one day after a settlement offer was served. Briggs v. Farmers Insurance Exchange, 2000 WI App 40, 233 Wis. 2d 163, 607 N.W.2d 670.

807.01 Annotation A party with multiple claims is not required to itemize a settlement offer in order to invoke the double costs and interest provisions of this section. Batteries Plus, LLC v. Mohr, 2000 WI App 153, 237 Wis. 2d 776, 615 N.W.2d 196.

807.01 Annotation Attorney's fees and costs, regardless of why they are awarded, are not part of the "amount recovered" under sub. (4) but rather are a shifting of the costs of litigation, and separate from the recovery. Dobbratz Trucking & Excavating v. PACCAR, Inc. 2002 WI App 138, 256 Wis. 2d 205, 647 N.W.2d 315.

807.01 Annotation Interest under sub. (4) and double costs under sub. (3) cannot be awarded when no judgment is entered in a case. Osman v. Phipps, 2002 WI App 170, 256 Wis. 2d 589, 649 N.W.2d 701.

807.01 Annotation When a defendant is sued under a fee-shifting statute, the defendant is on notice that the plaintiff is seeking not only damages but also reasonable attorney fees. Accordingly, when making an offer of judgment, the defendant is to include such fees and to so inform the plaintiff. The trial court should also include attorney fees in the judgment when it measures the offer against the judgment under sub. (1). Pachowitz v. LeDoux, 2003 WI App 120, 265 Wis. 2d 631, 666 N.W.2d 88, 02-2100.

807.01 Annotation It is not necessary that a judgment under sub. (4) must involve litigation and result in a verdict. A stipulated judgment greater than the plaintiff's earlier settlement offer entitled the plaintiff to double costs and interest. Tomsen v. Secura Insurance, 2003 WI App 187, 266 Wis. 2d 491, 668 N.W.2d 794, 03-0245.

807.01 Annotation The test for whether a given provision may be included in a settlement offer valid under this section is not reasonableness, but whether the provision specifies a remedy that could be imposed by the court. An offer demanding payment within 15 days of the offer was invalid because a judge could not enter a judgment requiring that the defendant tender payment within 15 days. DeWitt Ross & Stevens, S.C. v. Galaxy Gaming and Racing Limited Partnership, 2004 WI 92, ___ Wis. 2d ___, ___ N.W.2d ___, 02-0359.

807.01 Annotation "Taxable costs" in sub. (3) means those costs allowed as items of cost under s. 814.04. "Costs" in the first part of sub. (3) means "taxable costs." Costs recoverable under s. 814.04 include "fees allowed by law, which includes attorney's fees allowed by law that represent a necessary cost of litigation to which a prevailing party is entitled under s. 814.04 (2). Alberte v. Anew Health Care Services, Inc. 2004 WI App 146, ___ Wis. 2d ___, ___ N.W.2d ___, 03-2674.

807.01 Annotation Subs. (3) and (4) may be utilized in diversity actions in federal courts. Dillingham-Healy v. Milwaukee Metropolitan Sewerage District, 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 circuit or supplemental 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 Wis. 2d 585, 742 (1975); 1977 c. 449; Sup. Ct. Order, 141 Wis. 2d xiii (1987); 2001 a. 61.

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 Wis. 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 a circuit or supplemental court commissioner has power to make.

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 Wis. 2d 585, 743 (1975); 1977 c. 187 s. 135; 1997 a. 133; 2001 a. 61.

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 Wis. 2d 585, 744 (1975); 1975 c. 218; Sup. Ct. Order, 141 Wis. 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 When a stipulation did not satisfy this section, summary judgment was improper because there was no factual basis on the record for the decision. Wilharms v. Wilharms, 93 Wis. 2d 671, 287 N.W.2d 779 (1980).

807.05 Annotation An oral agreement to settle an action that does not comply with this section is unenforceable. Adelmeyer v. Wisconsin Electric Power Co. 135 Wis. 2d 367, 400 N.W.2d 473 (Ct. App. 1986).

807.05 Annotation This section does not affect procedural stipulations or judicial admissions that dispense with evidentiary requirements. State v. Aldazabal, 146 Wis. 2d 267, 430 N.W.2d 614 (Ct. App. 1988).

807.05 Annotation The subscription requirement is met by a stamped facsimile signature. This provision does not require hand-written signatures. Kocinski v. Home Insurance Co. 154 Wis. 2d 56, 452 N.W.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 Wis. 2d 702, 512 N.W.2d 155 (Ct. App. 1995), 94-2279.

807.05 Annotation To constitute a stipulation under this section, a statement must be conclusive on the question. The concession of a fact to the court made for strategic reasons and not agreed to by the other party is not a stipulation and the court need not engage in a colloquy with the parties about it. Fritz v. Fritz, 231 Wis. 2d 33, 605 N.W.2d 270 (Ct. App. 1999).

807.05 Annotation This section does not provide for a party to subscribe to an agreement through general conduct. A party's assent or approval must be formalized in some way on the document itself. Laska v. Laska, 2002 WI App 132, 255 Wis. 2d 823, 646 N.W.2d 393.

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 Wis. 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 Wis. 2d 744; 1975 c. 218; Sup. Ct. Order, 92 Wis. 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]

807.07 Annotation This section does not confer jurisdiction on the court to hear an appeal in a criminal case when the appeal is not timely. Scheid v. State, 60 Wis. 2d 575, 211 N.W.2d 458 (1973).

807.07 Annotation Sub. (2) applies only at the trial court level. It does not confer appellate jurisdiction on the supreme court when an appeal is first mistakenly taken to the circuit court. State v. Jakubowski, 61 Wis. 2d 220, 212 N.W.2d 155 (1973).

807.07 Annotation Mere retention of an appellant's brief prior to making a motion to dismiss is not participation in the appeal and does not constitute a waiver of an objection to jurisdiction. Prior holdings to the contrary are overruled. State v. Van Duyse, 66 Wis. 2d 286, 224 N.W.2d 603 (1974).

807.07 Annotation When a claimant timely appealed an adverse worker's compensation decision in good faith but erroneously captioned the appeal papers, the trial court abused its discretion by dismissing the action. Cruz v. DILHR, 81 Wis. 2d 442, 260 N.W.2d 692 (1978).

807.07 Annotation Sub. (1) does not apply to petitions to appeal under s. 808.10. First Wisconsin National Bank of Madison v. Nicholaou, 87 Wis. 2d 360, 274 N.W.2d 704 (1979).

807.07 Annotation The court of appeals erred in failing to exercise discretion under sub. (1) to permit an amendment of a notice of appeal. Northridge Bank v. Community Eye Care Center, 94 Wis. 2d 201, 287 N.W.2d 810 (1980).

807.07 Annotation Sub. (2) applies to actions for review under ch. 227. Shopper Advertiser v. DOR 117 Wis. 2d 223, 344 N.W.2d 115 (1984).

807.08 807.08  Borrowing court files regulated. The clerk shall not permit any paper filed in the clerk's office to be taken therefrom unless upon written order of a judge of the court. The clerk shall take a written receipt for all papers so taken and preserve the same until such papers are returned. Papers so taken shall be returned at once upon request of the clerk or presiding judge, and no paper shall be kept longer than 10 days.

807.08 History History: Sup. Ct. Order, 67 Wis. 2d 585, 745 (1975); 1993 a. 486.

807.08 Annotation Clerks of court may not send original records of criminal cases to the public defender prior to appeal unless a judge authorizes the release. 69 Atty. Gen. 63.

807.09 807.09  Conciliators.

807.09(1) (1) A circuit judge of the circuit court of any county may appoint and remove at any time, any retired or former circuit or county court judge to act, in matters referred by the judge and in conciliation matters. When a matter for conciliation is referred for such purpose, the conciliator shall have full authority to hear, determine and report findings to the court. Such conciliators may be appointed circuit court commissioners under SCR 75.02 (1).

807.09(2) (2) The circuit judges of such county shall make rules, not inconsistent with law, governing procedure before and pertaining to such conciliators and the county board shall fix and provide for their compensation.

807.09 History History: Sup. Ct. Order, 67 Wis. 2d 585, 746 (1975); 1975 c. 218; 1977 c. 187 s. 135; 1977 c. 323 s. 16; 2001 a. 61.

807.10 807.10  Settlements in behalf of minors; judgments.

807.10(1) (1) A compromise or settlement of an action or proceeding to which a minor or mentally incompetent person is a party may be made by the general guardian, if the guardian is represented by an attorney, or the guardian ad litem with the approval of the court in which such action or proceeding is pending.

807.10(2) (2) A cause of action in favor of or against a minor or mentally incompetent person may, without the commencement of an action thereon, be settled by the general guardian, if the guardian is represented by an attorney, with the approval of the court appointing the general guardian, or by the guardian ad litem with the approval of any court of record. An order approving a settlement or compromise under this subsection and directing the consummation thereof shall have the same force and effect as a judgment of the court.

807.10(3) (3) If the amount awarded to a minor by judgment or by an order of the court approving a compromise settlement of a claim or cause of action of the minor does not exceed $10,000, exclusive of interest and costs and disbursements, and if there is no general guardian of the ward, the court may upon application by the guardian ad litem after judgment, or in the order approving settlement, fix and allow the expenses of the action, including attorney fees and fees of guardian ad litem, authorize the payment of the total recovery to the clerk of the court, authorize and direct the guardian ad litem upon the payment to satisfy and discharge the judgment, or to execute releases to the parties entitled thereto and enter into a stipulation dismissing the action upon its merits. The order shall also direct the clerk upon the payment to pay the costs and disbursements and expenses of the action and to dispose of the balance in one of the manners provided in s. 880.04 (2) as selected by the court. The fee for the clerk's services for handling, depositing and disbursing funds under this subsection is prescribed in s. 814.61 (12) (a).

807.10 History History: Sup. Ct. Order, 67 Wis. 2d 585, 746 (1975); 1975 c. 218; 1981 c. 317; 1997 a. 290; 1999 a. 32.

807.10 Cross-reference Cross-reference: See s. 880.125 for provision requiring a court approving settlements to be satisfied as to the sufficiency of the guardian's bond.

807.10 Annotation The quasi-judicial immunity of a guardian ad litem applies only to liability for the negligent performance of his or her duties, not as a shield against court-imposed sanctions for failure to obey a court order. Reed v. Luebke, 2003 WI App 207, 267 Wis. 2d 596, 671 N.W.2d 304, 02-2211.

807.11 807.11  Orders: rendition and entry.

807.11(1) (1) An order is rendered when it is signed by the judge.

807.11(2) (2) An order is entered when it is filed in the office of the clerk of court.

807.11 History History: Sup. Ct. Order, 67 Wis. 2d 585, 747 (1975).

807.11 Annotation An oral order of a state court that an injunction be issued was valid even though the case was removed to federal court before the order was signed. Heidel v. Voight, 456 F. Supp. 959 (1978).

807.12 807.12  Suing by fictitious name or as unknown; partners' names unknown.

807.12(1) (1) When the name or a part of the name of any defendant, or when any proper party defendant to an action to establish or enforce, redeem from or discharge a lien or claim to property is unknown to the plaintiff, such defendant may be designated a defendant by so much of the name as is known, or by a fictitious name, or as an unknown heir, representative, owner or person as the case may require, adding such description as may reasonably indicate the person intended. But no person whose title to or interest in land appears of record or who is in actual occupancy of land shall be proceeded against as an unknown owner.

807.12(2) (2) When the name of such defendant is ascertained the process, pleadings and all proceedings may be amended by an order directing the insertion of the true name instead of the designation employed.

807.12(3) (3) In an action against a partnership, if the names of the partners are unknown to the plaintiff, all proceedings may be in the partnership name until the names of the partners are ascertained, whereupon the process, pleadings and all proceedings shall be amended by order directing the insertion of such names.

807.12 History History: Sup. Ct. Order, 67 Wis. 2d 585, 748 (1975).

807.12 Annotation This section does not authorize judgment against an unnamed individual. Miller v. Smith, 100 Wis. 2d 609, 302 N.W.2d 468 (1981).

807.12 Annotation When an action against an unnamed defendant under s. 807.12 was filed on the last day of the limitation period and amended process naming the defendant was served within 60 days after filing, the action was not barred. Relation back requirements of s. 802.09 (3) were inapplicable. Lak v. Richardson-Merrell, Inc. 100 Wis. 2d 641, 302 N.W.2d 483 (1981).