Chapter 813

813.02 Note Judicial Council Note, 1988: Sub. (1) (b) [created] allows the court to attempt to hold a telephone conference prior to granting a temporary injunction or temporary restraining order. The telephone conference procedure minimizes the risk of an improvident injunction and aids the court in fixing a realistic security. [Re Order effective Jan. 1, 1988]

813.02 Annotation A trial court does not abuse its discretion in denying a motion for a temporary injunction when it appears that the moving party has not established a reasonable probability it will ultimately prevail in a trial of the issues. Akin v. Kewaskum Community Schools, 64 Wis. 2d 154, 218 N.W.2d 494 (1974).

813.02 Annotation The purpose of a temporary injunction is to maintain the status quo, not to change the position of the parties, compel acts that constitute the ultimate relief sought, or craft a remedy that the court believes to be equitable. School District v. Wisconsin Interscholastic Athletic Ass’n, 210 Wis. 2d 365, 563 N.W.2d 585 (Ct. App. 1997), 96-3135.

813.02 Annotation A court may issue a temporary injunction when the moving party demonstrates four elements: 1) the movant is likely to suffer irreparable harm if a temporary injunction is not issued; 2) the movant has no other adequate remedy at law; 3) a temporary injunction is necessary to preserve the status quo; and 4) the movant has a reasonable probability of success on the merits. The grant or denial of injunctive relief is a matter of discretion for the circuit court. Milwaukee Deputy Sheriffs’ Ass’n v. Milwaukee County, 2016 WI App 56, 370 Wis. 2d 644, 883 N.W.2d 154, 15-1577.

813.02 Annotation A complaint stating at least one viable legal claim is required as an underlying basis for an injunction. In other words, there must be a viable or protectable legal claim or right upon which the petitioner would have a reasonable probability of success. A request for a temporary injunction is not a claim in and of itself, but a vehicle to prevent harm while litigation is pending on the underlying claims. Gahl ex rel. Zingsheim v. Aurora Health Care, Inc., 2022 WI App 29, 403 Wis. 2d 539, 977 N.W.2d 756, 21-1787.

813.02 Annotation Affirmed. 2023 WI 35, ___ Wis. 2d ___, 989 N.W.2d 561, 21-1787.

813.02 Annotation A circuit court erroneously exercises its discretion in the context of a temporary injunction when the court fails to consider and make a record of the factors relevant to its determination. In this case, the circuit court erroneously exercised its discretion by issuing an injunction without referencing any basis demonstrating that the plaintiff had a reasonable probability of success on the merits of some type of legal claim. Gahl ex rel. Zingsheim v. Aurora Health Care, Inc., 2023 WI 35, ___ Wis. 2d ___, 989 N.W.2d 561, 21-1787.

813.025 813.025 Ex parte restraining orders; right of review of certain orders.

813.025(1) (1) No circuit or supplemental court commissioner may issue any injunction or order suspending or restraining the enforcement or execution of any statute of the state or of any order of an administrative officer, board, department, commission or other state agency purporting to be made pursuant to the statutes of the state. If so issued, the injunction or order shall be void.

813.025(2) (2) The application for such an injunction or restraining order made to a court shall not be heard except upon notice to the attorney general and to such other persons as may be defendants in the action; but if the court is of the opinion that irreparable loss or damage will result to the applicant unless a temporary restraining order is granted, the court may grant such temporary restraining order at any time before such hearing and determination of the application for an interlocutory injunction. However, such temporary restraining order shall be effective only for 5 days unless extended after notice and hearing thereon, or upon written consent of the parties or their attorneys, and in no event shall such temporary restraining order remain in force beyond the time of the determination of the application for an interlocutory injunction.

813.025(3) (3) If a circuit court or a court of appeals enters an injunction, a restraining order, or any other final or interlocutory order suspending or restraining the enforcement of any statute of this state, the injunction, restraining order, or other final or interlocutory order is immediately appealable as a matter of right.

813.025 History History: Sup. Ct. Order, 67 Wis. 2d 585, 760 (1975); Stats. 1975 s. 813.025; 1979 c. 111; 1983 a. 204; 2001 a. 61; 2013 a. 156.

813.026 813.026 Remedy against heirs and legatees; temporary injunction; receivership; judgment. In an action, in a court of record, for damages founded upon contract or upon a judgment, when it appears that the defendant is interested, as heir, legatee, or devisee, in the estate of a decedent and that the defendant’s property that is liable to execution is probably insufficient to satisfy the plaintiff’s claim for damages, the defendant may be enjoined by the court, pending the action, from assigning or otherwise disposing of the defendant’s interest in the estate, and a receiver for the defendant’s interest may be appointed. The judgment may compel the defendant to transfer sufficient of the defendant’s interest to satisfy the judgment or may adjudge the transfer. The remedy given by this section is in addition to that given by proceedings supplementary to execution under ch. 816. If a receiver is appointed, he or she shall give prompt notice of the appointment to the personal representative.

813.026 History History: Sup. Ct. Order, 67 Wis. 2d 585, 760 (1975), 779; Stats. 1975 s. 813.026; 1993 a. 486; 2001 a. 102.

813.03 813.03 When granted defendant. A temporary injunction may also be granted on the application of the defendant, when it shall appear that the plaintiff is doing, or threatens, or is about to do, or is procuring or suffering to be done some act in violation of the defendant’s rights respecting the subject of the action and tending to the defendant’s injury or to render ineffectual such judgment as may be rendered in the defendant’s favor.

813.03 History History: Sup. Ct. Order, 67 Wis. 2d 585, 760 (1975); Stats. 1975 s. 813.03; 1993 a. 486.

813.04 813.04 Same; when granted; Sunday or holiday. The injunction may be granted at any time before judgment upon its appearing satisfactorily to the court or judge, by the complaint or answer or by affidavit that sufficient grounds exist therefor. A copy of the pleading or affidavit on which granted must be served with the injunction unless previously served. In case of exigency an injunction may be granted and may be served on Sunday or on a legal holiday.

813.04 History History: Sup. Ct. Order, 67 Wis. 2d 585, 760 (1975); Stats. 1975 s. 813.04.

813.05 813.05 Notice required.

813.05(1) (1) An injunction shall not be allowed after the defendant shall have answered, unless upon notice or upon an order to show cause; but in such case the defendant may be restrained until the decision of the court or judge granting or refusing the injunction.

813.05(2) (2) In an action against an insurance company or fraternal benefit society for an injunction or a receiver the commissioner of insurance shall be notified. Mailing a copy of such notice addressed to the commissioner of insurance at Madison, Wisconsin, shall be sufficient service.

813.05 History History: Sup. Ct. Order, 67 Wis. 2d 585, 760 (1975); Stats. 1975 s. 813.05.

813.06 813.06 Security for damages. In proceedings under s. 767.225 the court or judge may, and in all other proceedings except proceedings under ss. 813.12, 813.122, 813.125 and 823.113 the court or judge shall, require a bond of the party seeking an injunction, with sureties, to the effect that he or she will pay to the party enjoined such damages, not exceeding an amount to be specified, as he or she may sustain by reason of the injunction if the court finally decides that the party was not entitled thereto. Copies of such bond, affidavit or other pleading shall be served upon the party enjoined and the officer serving the same shall, within 8 days after such service, file his or her return in the office of the clerk of the court.

813.06 History History: Sup. Ct. Order, 67 Wis. 2d 585, 760 (1975); Stats. 1975 s. 813.06; 1979 c. 32 s. 92 (4); 1983 a. 204; 1985 a. 234 s. 8; 1989 a. 122; 2005 a. 443 s. 265.

813.06 Annotation An order of the trial court limiting the amount of annual compensation that the corporation could pay the individual defendants until further order was an injunction, and the trial court was required to demand a bond. Becker v. Becker, 66 Wis. 2d 731, 225 N.W.2d 884 (1975).

813.07 813.07 Assessment of damages; bill of particulars; costs. Upon an assessment of the damages caused by an injunction the defendant may be required to serve upon the plaintiff and the plaintiff’s sureties, within such time and in such manner as the court or referee shall direct, a bill of particulars. The plaintiff or the sureties may within 10 days after such service offer in writing to permit the court or referee to assess the defendant’s damages at a specified sum together with the costs of such proceeding incurred up to the time of such offer. If such offer be not accepted in writing within 5 days after it is made, it shall be considered withdrawn, and cannot be given in evidence. If the defendant fails to obtain a more favorable assessment of damages, the defendant cannot recover costs, but must pay the costs of the opposite party from the time of the offer.

813.07 History History: Sup. Ct. Order, 67 Wis. 2d 585, 760 (1975); Stats. 1975 s. 813.07; 1993 a. 486.

813.07 Annotation Increased construction costs were recoverable even though not in existence when the injunction was issued. Byrnes v. Metz, 53 Wis. 2d 627, 193 N.W.2d 675 (1972).

813.08 813.08 Injunction, defendant may be heard before enjoined. The court or judge may, before granting the injunction, make an order requiring cause to be shown why the injunction should not be granted, and the defendant may in the meantime be restrained.

813.08 History History: Sup. Ct. Order, 67 Wis. 2d 585, 760 (1975); Stats. 1975 s. 813.08.

813.11 813.11 Injunction, additional security. The party enjoined may, upon notice, apply for additional security and may combine such application with one to vacate or modify the injunction, and the presiding judge may require a further bond, in a sum and with sureties to be approved by the presiding judge, as a condition of the continuance of the injunction.

813.11 History History: Sup. Ct. Order, 67 Wis. 2d 585, 760 (1975); Stats. 1975 s. 813.11; 1993 a. 486.

813.115 813.115 Service notification system. A sheriff who executes or serves, or who assists a petitioner in executing or serving, a temporary restraining order, injunction, or other document or notice under s. 813.12, 813.122, 813.123, or 813.125 may use the Wisconsin Statewide Victim Notification service or another service notification system administered by the department of corrections that enables the petitioner to receive an automated notification of the service of the temporary restraining order, injunction, or other document or notice that must be served on the respondent. A sheriff for a county that uses the system shall enter each order for service into the system as soon as practicable so that the petitioner receives timely notification of the service. The clerk of court for a county that uses a service notification system shall, at the time a petition is filed under s. 813.12, 813.122, 813.123, or 813.125, make available to the petitioner information on how to gain access to the system.

813.115 History History: 2015 a. 349; 2017 a. 365.

813.12 813.12 Domestic abuse restraining orders and injunctions.

813.12(1) (1) Definitions. In this section:

813.12(1)(ad) (ad) “Caregiver” means an individual who is a provider of in-home or community care to an individual through regular and direct contact.

813.12(1)(ag) (ag) “Dating relationship” means a romantic or intimate social relationship between 2 adult individuals but “dating relationship” does not include a casual relationship or an ordinary fraternization between 2 individuals in a business or social context. A court shall determine if a dating relationship existed by considering the length of the relationship, the type of the relationship, and the frequency of the interaction between the adult individuals involved in the relationship.

813.12(1)(am) (am) “Domestic abuse” means any of the following engaged in by an adult family member or adult household member against another adult family member or adult household member, by an adult caregiver against an adult who is under the caregiver’s care, by an adult against his or her adult former spouse, by an adult against an adult with whom the individual has or had a dating relationship, or by an adult against an adult with whom the person has a child in common:

813.12(1)(am)1. 1. Intentional infliction of physical pain, physical injury or illness.

813.12(1)(am)2. 2. Intentional impairment of physical condition.

813.12(1)(am)3. 3. A violation of s. 940.225 (1), (2) or (3).

813.12(1)(am)4. 4. A violation of s. 940.32.

813.12(1)(am)5. 5. A violation of s. 943.01, involving property that belongs to the individual.

813.12(1)(am)6. 6. A threat to engage in the conduct under subd. 1., 2., 3., 4., or 5.

813.12(1)(ar) (ar) “Elder person” means any individual who is 60 years of age or older.

813.12(1)(b) (b) “Family member” means a spouse, a parent, a child or a person related by blood or adoption to another person.

813.12(1)(c) (c) “Household member” means a person currently or formerly residing in a place of abode with another person.

813.12(1)(ce) (ce) “Household pet” means a domestic animal that is not a farm animal, as defined in s. 951.01 (3), that is kept, owned, or cared for by the petitioner or by a family member or a household member of the petitioner.

813.12(1)(cg) (cg) “Reasonable grounds” means more likely than not that a specific event has occurred or will occur.

813.12(1)(cj) (cj) “Regular and direct contact” means face-to-face physical proximity to an individual that is planned, scheduled, expected, or periodic.

813.12(1)(d) (d) “Tribal court” means a court established by any federally recognized Wisconsin Indian tribe or band, except the Menominee Indian tribe of Wisconsin.

813.12(1)(e) (e) “Tribal order or injunction” means a temporary restraining order or injunction issued by a tribal court under a tribal domestic abuse ordinance adopted in conformity with this section.

813.12(2) (2) Commencement of action and response.

813.12(2)(a) (a) No action under this section may be commenced by complaint and summons. An action under this section may be commenced only by a petition described under sub. (5) (a). The action commences with service of the petition upon the respondent if a copy of the petition is filed before service or promptly after service. If the judge or a circuit court commissioner extends the time for a hearing under sub. (3) (c) and the petitioner files an affidavit with the court stating that personal service by the sheriff or a private server under s. 801.11 (1) (a) or (b) was unsuccessful because the respondent is avoiding service by concealment or otherwise, the judge or circuit court commissioner shall inform the petitioner that he or she may serve the respondent by publication of a summary of the petition as a class 1 notice, under ch. 985, and by mailing or sending a facsimile if the respondent’s post-office address or facsimile number is known or can with due diligence be ascertained. The mailing or sending of a facsimile may be omitted if the post-office address or facsimile number cannot be ascertained with due diligence. A summary of the petition published as a class 1 notice shall include the name of the respondent and of the petitioner, notice of the temporary restraining order, and notice of the date, time, and place of the hearing regarding the injunction. The court shall inform the petitioner in writing that, if the petitioner chooses to have the documents in the action served by the sheriff, the petitioner should contact the sheriff to verify the proof of service of the petition.

813.12(2)(b) (b) A petition may be filed in conjunction with an action affecting the family commenced under ch. 767, but commencement of an action affecting the family or any other action is not necessary for the filing of a petition or the issuance of a temporary restraining order or an injunction. A judge or circuit court commissioner may not make findings or issue orders under s. 767.225 or 767.41 while granting relief requested only under this section. Section 813.06 does not apply to an action under this section. The respondent may respond to the petition either in writing before or at the hearing on the issuance of the injunction or orally at that hearing.

813.12(2)(c) (c) When the respondent is served with the petition under this subsection, the person who serves the respondent shall also provide the respondent all of the following information:

813.12(2)(c)1. 1. Notice of the requirements and penalties under s. 941.29 and notice of any similar applicable federal laws and penalties.

813.12(2)(c)2. 2. An explanation of s. 813.1285, including the procedures for surrendering a firearm and the circumstances listed under s. 813.1285 under which a respondent must appear at a hearing to surrender firearms.

813.12(2)(c)3. 3. A firearm possession form developed under s. 813.1285 (5) (a), with instructions for completing and returning the form.

813.12(2m) (2m) Two-part procedure. Procedure for an action under this section is in 2 parts. First, if the petitioner requests a temporary restraining order the court shall issue or refuse to issue that order. Second, the court shall hold a hearing under sub. (4) on whether to issue an injunction, which is the final relief. If the court issues a temporary restraining order, the order shall set forth the date for the hearing on an injunction. If the court does not issue a temporary restraining order, the date for the hearing shall be set upon motion by either party.

813.12(3) (3) Temporary restraining order.

813.12(3)(a) (a) A judge or circuit court commissioner shall issue a temporary restraining order ordering the respondent to refrain from committing acts of domestic abuse against the petitioner, to avoid the petitioner’s residence, except as provided in par. (am), or any other location temporarily occupied by the petitioner or both, or to avoid contacting or causing any person other than a party’s attorney or a law enforcement officer to contact the petitioner unless the petitioner consents in writing, to refrain from removing, hiding, damaging, harming, or mistreating, or disposing of, a household pet, to allow the petitioner or a family member or household member of the petitioner acting on his or her behalf to retrieve a household pet, or any combination of these remedies requested in the petition, or any other appropriate remedy not inconsistent with the remedies requested in the petition, if all of the following occur:

813.12(3)(a)1. 1. The petitioner submits to the judge or circuit court commissioner a petition alleging the elements set forth under sub. (5) (a).

813.12(3)(a)2. 2. The judge or circuit court commissioner finds reasonable grounds to believe that the respondent has engaged in, or based on prior conduct of the petitioner and the respondent may engage in, domestic abuse of the petitioner.

813.12(3)(aj) (aj) In determining whether to issue a temporary restraining order, the judge or circuit court commissioner shall consider the potential danger posed to the petitioner and the pattern of abusive conduct of the respondent but may not base his or her decision solely on the length of time since the last domestic abuse or the length of time since the relationship ended. The judge or circuit court commissioner may grant only the remedies requested or approved by the petitioner. The judge or circuit court commissioner may not dismiss or deny granting a temporary restraining order because of the existence of a pending action or of any other court order that bars contact between the parties, nor due to the necessity of verifying the terms of an existing court order.

813.12(3)(am) (am) If the petitioner and the respondent are not married, the respondent owns the premises where the petitioner resides and the petitioner has no legal interest in the premises, in lieu of ordering the respondent to avoid the petitioner’s residence under par. (a) the judge or circuit court commissioner may order the respondent to avoid the premises for a reasonable time until the petitioner relocates and shall order the respondent to avoid the new residence for the duration of the order.

813.12(3)(b) (b) Notice need not be given to the respondent before issuing a temporary restraining order under this subsection. A temporary restraining order may be entered only against the respondent named in the petition.

813.12(3)(c) (c) The temporary restraining order is in effect until a hearing is held on issuance of an injunction under sub. (4), except that the court may extend the temporary restraining order under s. 813.1285. The temporary restraining order is not voided if the respondent is admitted into a dwelling that the order directs him or her to avoid. A judge or circuit court commissioner shall hold a hearing on issuance of an injunction within 14 days after the temporary restraining order is issued, unless the time is extended upon the written consent of the parties, extended under s. 801.58 (2m), or extended once for 14 days upon a finding that the respondent has not been served with a copy of the temporary restraining order although the petitioner has exercised due diligence. A judge or court commissioner may not extend the temporary restraining order in lieu of ruling on the issuance of an injunction.

813.12(3)(d) (d) The judge or circuit court commissioner shall advise the petitioner of the right to serve the respondent the petition by published notice if with due diligence the respondent cannot be served as provided under s. 801.11 (1) (a) or (b). The clerk of circuit court shall assist the petitioner with the preparation of the notice and filing of the affidavit of printing.

813.12(4) (4) Injunction.

813.12(4)(a) (a) A judge or circuit court commissioner may grant an injunction ordering the respondent to refrain from committing acts of domestic abuse against the petitioner, to avoid the petitioner’s residence, except as provided in par. (am), or any other location temporarily occupied by the petitioner or both, or to avoid contacting or causing any person other than a party’s attorney or a law enforcement officer to contact the petitioner unless the petitioner consents to that contact in writing, to refrain from removing, hiding, damaging, harming, or mistreating, or disposing of, a household pet, to allow the petitioner or a family member or household member of the petitioner acting on his or her behalf to retrieve a household pet, or any combination of these remedies requested in the petition, or any other appropriate remedy not inconsistent with the remedies requested in the petition, if all of the following occur:

813.12(4)(a)1. 1. The petitioner files a petition alleging the elements set forth under sub. (5) (a).

813.12(4)(a)2. 2. The petitioner serves upon the respondent a copy or summary of the petition and notice of the time for hearing on the issuance of the injunction, or the respondent serves upon the petitioner notice of the time for hearing on the issuance of the injunction.

813.12(4)(a)3. 3. After hearing, the judge or circuit court commissioner finds reasonable grounds to believe that the respondent has engaged in, or based upon prior conduct of the petitioner and the respondent may engage in, domestic abuse of the petitioner.

813.12(4)(aj) (aj) In determining whether to issue an injunction, the judge or circuit court commissioner shall consider the potential danger posed to the petitioner and the pattern of abusive conduct of the respondent but may not base his or her decision solely on the length of time since the last domestic abuse or the length of time since the relationship ended. The judge or circuit court commissioner may grant only the remedies requested by the petitioner. The judge or circuit court commissioner may not dismiss or deny granting an injunction because of the existence of a pending action or of any other court order that bars contact between the parties, nor due to the necessity of verifying the terms of an existing court order.

813.12(4)(am) (am) If the petitioner and the respondent are not married, the respondent owns the premises where the petitioner resides and the petitioner has no legal interest in the premises, in lieu of ordering the respondent to avoid the petitioner’s residence under par. (a) the judge or circuit court commissioner may order the respondent to avoid the premises for a reasonable time until the petitioner relocates and shall order the respondent to avoid the new residence for the duration of the order.

813.12(4)(b) (b) The judge or circuit court commissioner may enter an injunction only against the respondent named in the petition. No injunction may be issued under this subsection under the same case number against the person petitioning for the injunction. The judge or circuit court commissioner may not modify an order restraining the respondent based solely on the request of the respondent.

813.12(4)(c) (c)

813.12(4)(c)1. 1. An injunction under this subsection is effective according to its terms, for the period of time that the petitioner requests, but not more than 4 years, except as provided in par. (d). An injunction granted under this subsection is not voided if the petitioner allows or initiates contact with the respondent or by the admittance of the respondent into a dwelling that the injunction directs him or her to avoid.

813.12(4)(c)2. 2. When an injunction expires, the court shall extend the injunction if the petitioner states that an extension is necessary to protect him or her. This extension shall remain in effect until 4 years after the date the court first entered the injunction, except as provided in par. (d).

813.12(4)(c)4. 4. Notice need not be given to the respondent before extending an injunction under subd. 2. The clerk of courts shall notify the respondent after the court extends an injunction under subd. 2.

813.12(4)(d) (d)

813.12(4)(d)1. 1. A judge or circuit court commissioner may, upon issuing an injunction or granting an extension of an injunction issued under this subsection, order that the injunction is in effect for not more than 10 years, if the court finds, by a preponderance of the evidence stated on the record, that any of the following is true:

813.12(4)(d)1.a. a. There is a substantial risk that the respondent may commit first-degree intentional homicide under s. 940.01, or 2nd-degree intentional homicide under s. 940.05, against the petitioner.

813.12(4)(d)1.b. b. There is a substantial risk that the respondent may commit sexual assault under s. 940.225 (1), (2), or (3), or under s. 948.02 (1) or (2), against the petitioner.

813.12(4)(d)1m. 1m. Upon request by the petitioner, a judge or circuit court commissioner may order that the injunction is in effect permanently if the respondent has been convicted of a violation of s. 940.225 (1) to (3) in which the petitioner was the crime victim. An order based on a finding under this subdivision is subject to review and modification under s. 813.126 (1m).

813.12(4)(d)2. 2. This paragraph does not prohibit a petitioner from requesting a new temporary restraining order under sub. (3) or injunction under this subsection before or at the expiration of a previously entered order or injunction.

813.12(4g) (4g) Order; telephone services.