2009 Chapter 805

805.15 Annotation An order for a new trial under sub. (6) is not a final order and is not appealable as of right under s. 808.03 (1). Earl v. Marcus, 92 Wis. 2d 13, 284 N.W.2d 690 (Ct. App. 1979).

805.15 Annotation Sub. (6) establishes that one who wishes to take an appeal from the interlocutory order issued by the court. Wick v. Mueller, 105 Wis. 2d 191, 313 N.W.2d 799 (1982).

805.15 Annotation A shockingly low award of damages justified a new trial on that issue. Westfall v. Kottke, 110 Wis. 2d 86, 328 N.W.2d 481 (1983).

805.15 Annotation A court may order a retrial under sub. (6) on punitive damages alone. Badger Bearing v. Drives & Bearings, 111 Wis. 2d 659, 331 N.W.2d 847 (Ct. App. 1983).

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

805.15 Annotation A new trial in the interest of justice under sub. (1), when the controversy was not fully tried, is not limited to cases of evidentiary error and does not require a showing of a probable different result in the 2nd trial. State v. Harp, 161 Wis. 2d 773, 469 N.W.2d 210 (Ct. App. 1991).

805.15 Annotation The standard for granting a new trial in the interest of justice when 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 Mutual Insurance Co. 180 Wis. 2d 426, 509 N.W.2d 75 (Ct. App. 1993).

805.15 Annotation A codefendant's testimony that the defendant was aware of at trial, but unable to present because the codefendant refused to testify on 5th amendment grounds, was not newly discovered evidence. State v. Jackson, 188 Wis. 2d 187, 525 N.W.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(5) (5) The time limits in this section for filing motions do not apply to a motion for a new trial based on newly discovered evidence that is brought under s. 974.06.

805.16 History History: Sup. Ct. Order, 67 Wis. 2d 585, 711 (1975); Sup. Ct. Order, 118 Wis. 2d xiii (1984); Sup. Ct. Order, 136 Wis. 2d xxv (1987); Sup. Ct. Order 160 Wis. 2d xiii (1991); 2001 a. 16.

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 the close of the plaintiff's case are motions challenging the sufficiency of the evidence under this section. Jansen Co. v. Milwaukee Area District Board, 105 Wis. 2d 1, 312 N.W.2d 813 (1981).

805.16 Annotation Time periods under this section may not be enlarged by showing excusable neglect under s. 801.15 (2) (a). Brookhouse v. State Farm Mutual Insurance Co. 130 Wis. 2d 166, 387 N.W.2d 82 (Ct. App. 1986).

805.16 Annotation Failure to present timely postverdict motions does not deprive the court of appeals jurisdiction to review a judgment. Hartford Insurance Co. v. Wales, 138 Wis. 2d 508, 406 N.W.2d 426 (1987).

805.16 Annotation Once the trial court loses authority to set aside a verdict under this section by failing to act within 90 days, it cannot achieve the same result by vacating the judgment under s. 806.07 (1) (h). Manly v. State Farm Fire and Casualty Co. 139 Wis. 2d 249, 407 N.W.2d 306 (Ct. App. 1987).

805.16 Annotation The trial court is not competent to consider sub. (1) motions if the movant fails to timely file the motions and fails to obtain an extension before expiration of the 20-day period. Ahrens-Cadillac Olds v. Belongia, 151 Wis. 2d 763, 445 N.W.2d 744 (Ct. App. 1989).

805.16 Annotation Trial court actions under s. 805.16 permitted pending appeal under s. 808.075 are subject to sub. (1) time limits. Schmidt v. Smith, 162 Wis. 2d 363, 469 N.W.2d 855 (Ct. App. 1991).

805.16 Annotation A sexually violent person committed under ch. 980 preserves the right to appeal, as a matter of right, by filing postverdict motions within 20 days of the commitment order. State v. Treadway, 2002 WI App 195, 257 Wis. 2d. 467, 651 N.W.2d 334, 00-2957.

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 Wis. 2d 203, 533 N.W.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 Wis. 2d 585, 712 (1975); Sup. Ct. Order, 73 Wis. 2d xxxi (1976); Sup. Ct. Order, 107 Wis. 2d xi (1982); Sup Ct. Order, 130 Wis. 2d xi (1986); Sup. Ct. Order, 160 Wis. 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 Section 805.17 (3) does not limit the trial court's discretion to grant relief from an order or judgment under s. 806.07 (1) (h) when reasons justifying relief are apparent to the court. Matter of Estate of Smith, 82 Wis. 2d 667, 264 N.W.2d 239 (1978).

805.17 Annotation Failure to bring a motion under sub. (3) to correct a manifest error constitutes a waiver of the right to have an issue considered on appeal. Schinner v. Schinner, 143 Wis. 2d 81, 420 N.W.2d 381 (Ct. App. 1988).

805.17 Annotation If a motion is filed under sub. (3), the 45-day time for appeal under s. 808.04 (1) applies beginning upon disposal of the motion. Salzman v. DNR, 168 Wis. 2d 523, 484 N.W.2d 337 (Ct. App. 1992).

805.17 Annotation In a 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 an issue of fact does, summary judgment proof gives way to trial proof. Berna-Mork v. Jones, 173 Wis. 2d 733, 496 N.W.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 Casualty Co. v. Milwaukee Metropolitan Sewerage District 175 Wis. 2d 527, 499 N.W.2d 282 (Ct. App. 1993).

805.17 Annotation Reconsideration assumes a question that 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 Wis. 2d 229, 519 N.W.2d 750 (Ct. App. 1994).

805.17 Annotation Although a formal order was subsequently signed, the trial court's letter to the parties informing them that a motion for reconsideration was denied was a denial "on the record" under sub. (3), and the time for filing an appeal commenced on the date of the letter. Orth v. Ameritrade, Inc. 187 Wis. 2d 162, 522 N.W.2d 30 (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 Wis. 2d 436, 569 N.W.2d 467 (Ct. App. 1997), 95-3168.

805.17 Annotation There is no condition precedent under sub. (3) for reconsideration on the court's own motion except that the court must act within 20 days of its original decision. Therefore there is no requirement that the reason for reconsideration must have been a subject of the original hearing. Village of Thiensville v. Olsen, 223 Wis. 2d 256, 588 N.W.2d 394 (Ct. App. 1998), 98-2055.

805.17 Annotation Sub. (3) does not apply to reconsiderations of summary or default judgments. Teff v. Unity Health Plans Insurance Corporation, 2003 WI App 115, 265 Wis. 2d 703, 666 N.W.2d 38, 02-1319.

805.17 Annotation A tenant in an eviction may move for reconsideration of the eviction judgment under sub. (3), but must take an appeal from the judgment within the time for appeal in s. 799.445. The time for filing an appeal under sub. (3) does not apply. Highland Manor Associates v. Bast, 2003 WI 152, 268 Wis. 2d 1, 672 N.W.2d 709, 02-2799.

805.17 Annotation To prevail on a motion for reconsideration, the movant must present either newly discovered evidence or establish a manifest error of law or fact. A party may not use a motion for reconsideration to introduce new evidence that could have been introduced at the original summary judgment phase. Koepsell's Olde Popcorn Wagons, Inc. v. Koepsell's Festival Popcorn Wagons, Ltd. 2004 WI App 129, 275 Wis. 2d 397, 685 N.W.2d 397, 03-0773

805.17 Annotation What You Need to Know: New Electronic Discovery Rules. Sankovitz, Grenig & Gleisner. Wis. Law. July 2010.

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 Wis. 2d 585, 714 (1975); Sup. Ct. Order No. 96-08, 207 Wis. 2d xv (1997).

805.18 Annotation For an error to "affect the substantial rights" of a party, there must be a reasonable possibility that the error contributed to the outcome of the action. A reasonable possibility of a different outcome is a possibility sufficient to undermine confidence in the outcome. If the error at issue is not sufficient to undermine the reviewing court's confidence in the outcome of the proceeding, the error is harmless. Evelyn C.R. v. Tykila S. 2001 WI 110, 246 Wis. 2d 1, 629 N.W.2d 768, 00-1739.

805.18 Annotation Error is harmless if it is clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error. State v. Harvey, 2002 WI 93, 254 Wis. 2d 442, 647 N.W.2d 189, 00-0541.