808.07 Annotation
Under sub. (1) and s. 808.075 (1), a circuit court has authority to confirm a sheriff's sale even though an appeal of the judgment of foreclosure and sale is pending. Community National Bank v. O'Neill,
157 Wis. 2d 244,
458 N.W.2d 385 (Ct. App. 1990).
808.07 Annotation
A stay pending appeal is appropriate when the moving party: 1) makes a strong showing that it is likely to prevail on the appeal; 2) shows that unless the stay is granted it will suffer irreparable harm; 3) shows that there will be no substantial harm to the other parties; and 4) shows that there will be no harm to the public interest. State v. Gudenschwager,
191 Wis. 2d 432,
529 N.W.2d 225 (1995).
808.07 Annotation
The
Gudenschwager factors do not provide adequate guidance for granting a stay pending appeal when the judgment sought to be stayed is solely a money judgment. The court must consider: 1) the likelihood of success on appeal; 2) the need to ensure collectibility of the judgment if the appeal is unsuccessful; 3) whether the appellant, if successful, will be able to recover; and 4) the harm to the respondent if the judgment is not paid until the completion of an unsuccessful appeal. Scullion v. Wisconsin Power & Light Co.
2000 WI App 120,
237 Wis. 2d 498,
614 N.W.2d 565,
98-3221.
808.07 Annotation
Even if a statutory lis pendens under s. 840.10 is dissolved, common law lis pendens applies and a purchaser who is a party to the relevant litigation takes the property subject to the outcome of the litigation, including appeals. This section does not affect that result. Gaugert v. Duve,
2001 WI 83,
244 Wis. 2d 691,
628 N.W.2d 861,
98-3004.
808.07 Annotation
In some cases, executions may be stayed, tolling interest, and in other cases, a court may decline such a request for stay. There is no substantial conflict in these differing results. Estate of Matteson v. Matteson,
2008 WI 48,
309 Wis. 2d 311,
749 N.W.2d 557,
05-2607.
808.07 Annotation
In determining whether to grant relief pending appeal, the court of appeals exercises its discretion. The court of appeals should explain its discretionary decision-making to ensure the soundness of that decision-making and to facilitate judicial review. In this case, the court of appeals erroneously exercised its discretion when the court denied the defendant's motion for relief pending appeal without explaining the reasoning for the discretionary denial decision. State v. Scott,
2018 WI 74,
382 Wis. 2d 476,
914 N.W.2d 141,
16-2017.
808.07 Annotation
Involuntary medication orders are subject to an automatic stay pending appeal. On a motion to lift an automatic stay, the state must: 1) make a strong showing that it is likely to succeed on the merits of the appeal; 2) show that the defendant will not suffer irreparable harm if the stay is lifted; 3) show that no substantial harm will come to other interested parties if the stay is lifted; and 4) show that lifting the stay will do no harm to the public interest. State v. Scott,
2018 WI 74,
382 Wis. 2d 476,
914 N.W.2d 141,
16-2017.
808.075
808.075
Permitted court actions pending appeal. 808.075(1)(1)
In any case, whether or not an appeal is pending, the circuit court may act under ss.
801.18 (16),
804.02 (2),
805.15,
805.16,
805.17 (3),
806.07,
806.08,
806.15 (2),
806.24 (4),
808.07 (1) and
(2), and
809.12.
808.075(2)
(2) In a case appealed under s.
809.30, the circuit court retains the power to act on all issues until the notice of appeal has been filed with the clerk of the circuit court, except that the circuit court may not act upon any motion to extend a time limit that is specified in s.
809.30. Thereafter, the circuit court may act only as provided in subs.
(1) and
(4).
808.075(3)
(3) In a case not appealed under s.
809.30, the circuit court retains the power to act on all issues until the record has been transmitted to the court of appeals. Thereafter, the circuit court may act only as provided in subs.
(1) and
(4).
808.075(4)
(4) The circuit court may act as to the following despite the pendency of an appeal:
808.075(4)(a)4.
4. Hearing for child held in custody under s.
48.21 or an adult expectant mother of an unborn child held in custody under s.
48.213.
808.075(4)(b)4.
4. Commitment, conditional release, recommitment and discharge under s.
971.17 of a person found not guilty by reason of mental disease or defect.
808.075(4)(d)4.
4. Revision of judgment or order for child support, maintenance payments or family support payments under s.
767.59 or
767.89.
808.075(4)(d)5.
5. Order for temporary maintenance, temporary child support or for suit money, counsel fees and disbursements in the appellate court under s.
767.273.
808.075(4)(d)6.
6. Property division, where the court has expressly or impliedly reserved jurisdiction, provided the court does not revise or modify its final division of property.
808.075(4)(e)
(e) In a case under chs.
701 or
853 to
879, any matter, unless the appellate court directs the trial court not to act on specific issues or the trial court declines to act because the matter directly affects the issues on appeal.
808.075 Note
NOTE: Par. (e) (intro.) and 1. were consolidated and renumbered par. (e) under s. 13.92 (1) (bm) 2. by the legislative reference bureau. Capitalization and punctuation were modified under s. 35.17.
808.075(4)(g)7.
7. Commitment, conditional release, recommitment and discharge under s.
971.17 of a person found not guilty by reason of mental disease or defect.
808.075(5)
(5) Notwithstanding the limitations of this section, any party may petition the appellate court for remand to the circuit court for action upon specific issues.
808.075(6)
(6) In addition to sub.
(5), the appellate court may remand the record to the circuit court for additional proceedings while the appeal is pending.
808.075(7)
(7) Upon completion of an action taken by the circuit court under sub.
(1),
(4),
(5) or
(6) of this section, the clerk shall send a copy of the judgment or order to the appellate court.
808.075(8)
(8) If an appellate court remands the record to the circuit court for additional proceedings under sub.
(5) or
(6), the appellate court, in the pending appeal, may review the judgment or order that the circuit court enters following remand. If any party is aggrieved by the judgment or order of the circuit court, the party shall file in the appellate court a written statement of objections to the judgment or order within 14 days after the record is returned to the clerk of the appellate court. A party that files a statement of objections need not file an additional notice of appeal or cross-appeal.
808.075 History
History: Sup. Ct. Order, 146 Wis. 2d xiii (1988);
1989 a. 86;
1993 a. 16,
446,
479,
481;
1995 a. 38,
73,
77,
275;
1997 a. 35,
191,
292,
296,
334;
1999 a. 9; Sup. Ct. Order No.
00-02, 2001 WI 39, 242 Wis. 2d xxvii;
2001 a. 16;
2005 a. 264,
387,
434;
2005 a. 443 ss.
263,
265; Sup. Ct. Order No.
14-03, 2016 WI 29, filed 4-28-16, eff. 7-1-16;
2017 a. 365 s.
111; s. 13.92 (1) (bm) 2.; s. 35.17 correction in (4) (d) 10., (e).
808.075 Note
Judicial Council Note, 1988: In re Marriage of Hengel v. Hengel,
120 Wis. 2d 522, 355 N. W. 2d 846 (Ct. App. 1984), the court of appeals held that since there is no specific statutory exception, the trial court had no competence to enter an order requiring the husband to contribute to his wife's attorney's fees for representation in the trial court after a notice of appeal had been filed. Section 808.075 is created to specify the actions that may be taken in circuit court after a notice of appeal has been filed in cases appealed under s. 809.30 and after transmittal of the record to an appellate court in other cases.
808.075 Note
Matters affecting trusts and estates have historically been treated as a series of special proceedings, and the trial court is charged with ongoing supervision and administrative duties affecting such matters. Because of the ongoing involvement of the trial court, sub. (4) (e) reserves full competence to act, unless it is determined that competence should be restricted as to specific issues. [Re Order effective Jan. 1, 1989]
