(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:
Stay execution or enforcement of a judgment or order;
Make any order appropriate to preserve the existing state of affairs or the effectiveness of the judgment subsequently to be entered.
During the pendency of an appeal, the trial court may hear and determine a motion filed under s. 806.07
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.
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.
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.
(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.
(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.
(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.
(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.
History: 1977 c. 187
; 1979 c. 32
; 1979 c. 110
s. 60 (9)
; 1983 a. 158
; 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]
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.
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]
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).
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).
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
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
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
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
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
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
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)
, 805.17 (3)
, 806.15 (2)
, 806.24 (4)
, 808.07 (1)
, and 809.12
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)
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)
The circuit court may act as to the following despite the pendency of an appeal:
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
Commitment, conditional release, recommitment and discharge under s. 971.17
of a person found not guilty by reason of mental disease or defect.
Revision of judgment or order for child support, maintenance payments or family support payments under s. 767.59
Order for temporary maintenance, temporary child support or for suit money, counsel fees and disbursements in the appellate court under s. 767.273
Property division, where the court has expressly or impliedly reserved jurisdiction, provided the court does not revise or modify its final division of property.
In a case under chs. 701
, 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.
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.