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808.07 808.07 Relief pending appeal.
808.07(1) (1) Effect of appeal. An appeal does not stay the execution or enforcement of the judgment or order appealed from except as provided in this section or as otherwise expressly provided by law.
808.07(2) (2)Authority of a court to grant relief pending appeal.
808.07(2)(a)(a) During the pendency of an appeal, a trial court or an appellate court may:
808.07(2)(a)1. 1. Stay execution or enforcement of a judgment or order;
808.07(2)(a)2. 2. Suspend, modify, restore or grant an injunction; or
808.07(2)(a)3. 3. Make any order appropriate to preserve the existing state of affairs or the effectiveness of the judgment subsequently to be entered.
808.07(2)(am) (am) During the pendency of an appeal, the trial court may hear and determine a motion filed under s. 806.07.
808.07(2)(b) (b) Except as provided in s. 655.27 (5) (a) 3., relief under this subsection may be conditioned upon the filing of an undertaking in the trial court.
808.07(2m) (2m)Limit on undertaking.
808.07(2m)(a)(a) During the pendency of an appeal of a judgment in any civil action, the court shall set the amount of the undertaking to be furnished by all appellants collectively in order to stay the execution of the judgment during appellate review, but the undertaking shall not exceed $100,000,000.
808.07(2m)(b) (b) Notwithstanding par. (a), if an appellee proves by a preponderance of the evidence that an appellant is dissipating assets outside the ordinary course of business to avoid payment of a judgment, a court may enter any order necessary to protect the appellee and may require the appellant to post a bond in an amount not to exceed the amount of the judgment.
808.07(3) (3)Undertaking for costs. An undertaking for costs is not required unless specifically required by statute, or, except as provided in s. 655.27 (5) (a) 3., by the trial court acting in its discretion.
808.07(4) (4)Proceedings against a surety. A surety on an undertaking is subject to the jurisdiction of the trial court and irrevocably appoints the clerk of that court as the surety's agent for service of any papers affecting his or her liability on the undertaking. A person may seek to enforce the surety's liability by filing a motion in the action or proceeding in the trial court in which the undertaking was filed.
808.07(5) (5)Public officials. A person or agency suing or being sued in an official public capacity is not required to execute an undertaking as a condition for relief under this section unless, except as provided in s. 655.27 (5) (a) 3., required by the court in its discretion.
808.07(6) (6)Sureties on undertakings. A surety shall file with the undertaking an affidavit that the surety has a net worth in property within this state not exempt from execution which exceeds the amount of the undertaking, except as provided in s. 632.17 (2). The respondent may by motion object to the sufficiency of a surety within 14 days after service of a copy of the undertaking.
808.07 History History: 1977 c. 187; 1979 c. 32; 1979 c. 110 s. 60 (9); 1983 a. 158, 219; Sup. Ct. Order, 130 Wis. 2d xix (1986); 1985 a. 332; Sup. Ct. Order No. 00-02, 2001 WI 39, 242 Wis. 2d xxvii; 2003 a. 105.
Effective date note Judicial Council Note, 1986: Sub. (2) (am) carries forward the authority of trial courts to hear and determine motions for relief from judgment during the pendency of an appeal. Authority of the appellate court to hear and determine such motions under prior sub. (2) (a) 4. has been repealed. [Re Order eff. 7-1-86]
808.07 Note Judicial Council Note, 2001: Sub. (6) is the first of fifteen statutes scattered throughout the rules in which a 10-day deadline is being changed to a 14-day deadline. Also, 7-day deadlines are being changed to 11-day deadlines. Many of the current deadlines in ch. 809 are either 7 or 10 days and are affected by s. 801.15 (1) (b), which excludes "Saturdays, Sundays and holidays" from time periods "less than 11 days." Additionally, many time periods in ch. 809 run from the service of a document, and under s. 801.15 (5) (a), when a document is served by mail, 3 days are added to the prescribed period. The interplay of s. 801.15 and ch. 809 causes many of the time periods in ch. 809 to be substantially longer than the number of days specified in the Rules. The varying time periods have made calculation of the court's deadlines difficult.
808.07 Note The proposed amendment of all of the 7-day or 10-day deadlines to 11 and 14 days, respectively, will remove the impact of s. 801.15 (1) (b) on the Rules of Appellate Procedure. However, there will be little adverse impact on the time actually given to parties. The proposed change will greatly facilitate the court's calculation of deadlines. If circumstances demand a different time period, the court may set an appropriate deadline under s. 809.82 (2) (a). [Re Order No. 00-02 effective July 1, 2001]
808.07 Annotation A postjudgment order of the circuit court denying a motion under sub. (2) (a) 4. [now sub. (2) (am)] is not reviewable on appeal from the judgment. Chicago & North Western Railroad. v. LIRC, 91 Wis. 2d 462, 283 N.W.2d 603 (Ct. App. 1979).
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.
808.075 808.075 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. 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) (a) In a case under ch. 48:
808.075(4)(a)1. 1. Review of actions by a guardian under s. 48.023.
808.075(4)(a)2. 2. Review of nonsecure custody orders under s. 48.207.
808.075(4)(a)3. 3. Review of secure detention orders under s. 48.208 and secure detention status reviews under s. 48.209 (1) (e).
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)(a)5. 5. Hearing upon involuntary removal under s. 48.305.
808.075(4)(a)6. 6. Revision of dispositional order under s. 48.363.
808.075(4)(a)7. 7. Extension of dispositional order under s. 48.365, unless s. 48.368 applies.
808.075(4)(a)8. 8. Review of permanency plan under s. 48.38 (5).
808.075(4)(a)9. 9. Release of confidential information under s. 48.396 or 48.78.
808.075(4)(a)10. 10. Revision of guardianship order under s. 48.977 (6).
808.075(4)(a)11. 11. Termination of guardianship under s. 48.977 (7), including removal of a guardian.
808.075(4)(a)12. 12. Rescission of a guardianship order under s. 48.978 (2) (L) 4., (m) 2. or (n) or (3) (d) 3. or 4., (j) 2. or 3. or (k) 2. or 3.
808.075(4)(b) (b) In a case under ch. 51:
808.075(4)(b)1. 1. Disposition, modification and extension of commitment under s. 51.20 (13).
808.075(4)(b)2. 2. Reexamination of commitment under s. 51.20 (16).
808.075(4)(b)3. 3. Enforcement of patient rights under s. 51.61.
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)(c) (c) In a case under ch. 55:
808.075(4)(c)1. 1. Protective placement review under s. 55.18, modification under s. 55.16, or termination under s. 55.17.
808.075(4)(c)2. 2. Hearing required upon transfer under s. 55.15.
808.075(4)(c)3. 3. Enforcement of patient's rights under s. 55.23.
808.075(4)(d) (d) In a case under ch. 767:
808.075(4)(d)1. 1. Revision of orders for legal custody or periods of physical placement under s. 767.41, 767.451, 767.461, or 767.481.
808.075(4)(d)2. 2. Issuance or modification of orders for visitation rights under s. 767.43.
808.075(4)(d)3. 3. Annual adjustment of child or family support under s. 767.553.
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)(d)7. 7. Vacation or modification of judgment under s. 767.35 (6).
808.075(4)(d)8. 8. Revocation of judgment under s. 767.35 (7).
808.075(4)(d)9. 9. Enforcement of payments under s. 767.77, 767.805 (4), or 767.89.
808.075(4)(d)10. 10. Enforcement of orders under s. s. 767.78, 767.805 (4), or 767.89.
808.075(4)(d)11. 11. Enforcement or modification of assignments under s. 767.513 or 767.75.
808.075(4)(d)12. 12. Enforcement or modification of account transfers under s. 767.76.
808.075(4)(d)13. 13. Determination of charges and issuance of repayment orders under s. 767.71.
808.075(4)(e) (e) In a case under chs. 701 or 853 to 879:
808.075(4)(e)1. 1. 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(4)(f) (f) In a case under ch. 54:
808.075(4)(f)1. 1. Review a bond under s. 54.46 (4) or 54.852 (9).
808.075(4)(f)2. 2. Release of deposited funds under s. 54.46 (4) (b) 3.
808.075(4)(f)3. 3. Order for visitation under s. 54.56.
808.075(4)(f)4. 4. Appointment of successor guardian under s. 54.54 (1).
808.075(4)(f)5. 5. Approval of guardian's exercise of marital property rights under s. 54.20 (2) (h).
808.075(4)(f)6. 6. Approval of management of property under s. 54.19 or 54.20.
808.075(4)(f)7. 7. Direction for use of estate for benefit of wards under s. 54.19 (4).
808.075(4)(f)8. 8. Examination of annual accounts and assets under ss. 54.62 and 54.66.
808.075(4)(f)9. 9. Removal of guardian under s. 54.68 (4) (d).
808.075(4)(f)10. 10. Determination of petitions for instructions to guardian.
808.075(4)(f)11. 11. Termination of guardianship under s. 54.64.
808.075(4)(f)12. 12. Restoration of specific legal rights under s. 54.64 (2) (c).
808.075(4)(f)13. 13. Authorization of purchase of a home for a ward under s. 54.852 (15) (a).
808.075(4)(fn) (fn) In a case under ch. 938:
808.075(4)(fn)2. 2. Review of nonsecure custody orders under s. 938.207.
808.075(4)(fn)3. 3. Review of secure detention orders under s. 938.208 and secure detention status reviews under s. 938.209 (1) (a) 5.
808.075(4)(fn)4. 4. Hearing for juvenile held in custody under s. 938.21.
808.075(4)(fn)5. 5. Hearing upon involuntary removal under s. 938.305.
808.075(4)(fn)6. 6. Revision of dispositional order under s. 938.363.
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2011-12 Wisconsin Statutes updated though 2013 Wis. Act 200 and all Supreme Court Orders entered before April 11, 2014. Published and certified under s. 35.18. Changes effective after April 11, 2014 are designated by NOTES. (Published 4-11-14)