Chapter 805

CHAPTER 805

CIVIL PROCEDURE — TRIALS

805.01   Jury trial of right.

805.02   Advisory jury and trial by consent.

805.03   Failure to prosecute or comply with procedure statutes.

805.04   Voluntary dismissal: effect thereof.

805.05   Consolidation; separate trials.

805.06   Referees.

805.07   Subpoena.

805.08   Jurors.

805.09   Juries of fewer than 12; five-sixths verdict.

805.10   Examination of witnesses; arguments.

805.11   Objections; exceptions.

805.12   Special verdicts.

805.13   Jury instructions; note taking; form of verdict.

805.14   Motions challenging sufficiency of evidence; motions after verdict.

805.15   New trials.

805.16   Time for motions after verdict.

805.17   Trial to the court.

805.18   Mistakes and omissions; harmless error.

Ch. 805 Note NOTE: This chapter was created by Sup. Ct. Order, 67 Wis. 2d 585 (1975), which contains explanatory notes. Statutes prior to the 1983-84 edition also contain these notes.

805.01 805.01 Jury trial of right.

805.01(1) (1) Right preserved. The right of trial by jury as declared in article I, section 5, of the constitution or as given by a statute and the right of trial by the court shall be preserved to the parties inviolate.

805.01(2) (2) Demand. Any party entitled to a trial by jury or by the court may demand a trial in the mode to which entitled at or before the scheduling conference or pretrial conference, whichever is held first. The demand may be made either in writing or orally on the record.

805.01(3) (3) Waiver. The failure of a party to demand in accordance with sub. (2) a trial in the mode to which entitled constitutes a waiver of trial in such mode. The right to trial by jury is also waived if the parties or their attorneys of record, by written stipulation filed with the court or by an oral stipulation made in open court and entered in the record, consent to trial by the court sitting without a jury. A demand for trial by jury made as herein provided may not be withdrawn without the consent of the parties.

805.01 History History: Sup. Ct. Order, 67 Wis. 2d 585, 689 (1975); 1975 c. 218; Sup. Ct. Order, 112 Wis. 2d xi (1983); 1983 a. 192.

805.01 Note Judicial Council Committee Note, 1983: The time deadline for demanding a jury trial is the scheduling conference where that occurs before or in lieu of the pretrial conference because knowledge of the mode of trial is required for proper scheduling. [Re Order effective July 1, 1983]

805.01 Annotation A legal counterclaim in an equitable action does not necessarily entitle the counterclaimant to a jury trial. An amendment by the plaintiff from equity to law does not necessarily entitle the defendant to a jury trial if the equitable action was brought in good faith. Tri-State Home Improvement Co. v. Mansavage, 77 Wis. 2d 648, 253 N.W.2d 474 (1977).

805.01 Annotation A party is entitled, as a matter of right, to a jury trial on a question of fact if that issue is retried, regardless of an earlier waiver. Tesky v. Tesky, 110 Wis. 2d 205, 327 N.W.2d 706 (1983).

805.01 Annotation When collateral estoppel compels raising a counterclaim in an equitable action, that compulsion does not result in the waiver of the right to a jury trial. Norwest Bank Wisconsin Eau Claire, N.A. v. Plourde, 185 Wis. 2d 377, 518 N.W.2d 265 (Ct. App. 1994).

805.01 Annotation Absent an unambiguous declaration that a party intends to bind itself for future fact-finding hearings or trials, a jury waiver applies only to the fact-finding hearing or trial pending at the time the stipulation is made. Walworth County Department of Health & Human Services v. Roberta J.W., 2013 WI App 102, 349 Wis. 2d 691, 836 N.W.2d 860, 12-2387.

805.01 Annotation A pre-litigation jury waiver provision in a contract was enforceable. A motion to strike a demand for a jury trial based on the contract was not a demand for a trial to the court that was subject to waiver under sub. (3). Parsons v. Associated Banc-Corp, 2017 WI 37, 374 Wis. 2d 513, 893 N.W.2d 212, 14-2581.

805.01 Annotation The New Wisconsin Rules of Civil Procedure: Chapters 805-807. Graczyk. 59 MLR 671 (1976).

805.01 Note NOTE: See also the notes to article I, section 5, of the Wisconsin Constitution.

805.02 805.02 Advisory jury and trial by consent.

805.02(1) (1) In all actions not triable of right by a jury, the court upon motion or on its own initiative may try any issue with an advisory jury.

805.02(2) (2) With the consent of both parties, the court may order a trial with a jury whose verdict has the same effect as if trial by jury had been a matter of right.

805.02 History History: Sup. Ct. Order, 67 Wis. 2d 585, 690 (1975).

805.03 805.03 Failure to prosecute or comply with procedure statutes. For failure of any claimant to prosecute or for failure of any party to comply with the statutes governing procedure in civil actions or to obey any order of court, the court in which the action is pending may make such orders in regard to the failure as are just, including but not limited to orders authorized under s. 804.12 (2) (a). Any dismissal under this section operates as an adjudication on the merits unless the court in its order for dismissal otherwise specifies for good cause shown recited in the order. A dismissal on the merits may be set aside by the court on the grounds specified in and in accordance with s. 806.07. A dismissal not on the merits may be set aside by the court for good cause shown and within a reasonable time.

805.03 History History: Sup. Ct. Order, 67 Wis. 2d 585, 690 (1975).

805.03 Annotation In order to demonstrate that a dismissal order based on failure to prosecute is an abuse of discretion, the aggrieved party must show a clear and justifiable excuse for the delay. Trispel v. Haefer, 89 Wis. 2d 725, 279 N.W.2d 242 (1979).

805.03 Annotation A judgment dismissing an action was void for lack of advance actual notice of dismissal that defined the “failure to prosecute” standard. Neylan v. Vorwald, 124 Wis. 2d 85, 368 N.W.2d 648 (1985).

805.03 Annotation Dismissal for failure to prosecute within a year of filing required actual or constructive notice of the applicable standards. Rupert v. Home Mutual Insurance Co., 138 Wis. 2d 1, 405 N.W.2d 661 (Ct. App. 1987).

805.03 Annotation Dismissal under this section is presumptively with prejudice. When the plaintiff failed to show “good cause” for delay, the appeals court erred in dismissing without prejudice. Marshall-Wisconsin Co. v. Juneau Square Corp., 139 Wis. 2d 112, 406 N.W.2d 764 (1987).

805.03 Annotation The court of appeals’ remand “for trial” after reversal of a summary judgement order did not mandate the court to schedule and hold a trial. Dismissal for failure to prosecute was not an abuse of discretion. Prahl v. Brosamle, 142 Wis. 2d 658, 420 N.W.2d 372 (Ct. App. 1987).

805.03 Annotation When conduct in failing to comply with a court order is egregious and without clear and justifiable excuse, the court may, in its discretion, order dismissal. Johnson v. Allis Chalmers Corp., 162 Wis. 2d 261, 470 N.W.2d 859 (1991).

805.03 Annotation Ordering a criminal defendant to pay the state’s trial expenses upon mistrial for violation of a pretrial order was authorized by this section. State v. Heyer, 174 Wis. 2d 164, 496 N.W.2d 779 (Ct. App. 1993).

805.03 Annotation In cases that do not fit squarely within this section, a trial court has certain inherent powers to sanction the parties, including the awarding of attorney fees. Schaefer v. Northern Assurance Co. of America, 182 Wis. 2d 148, 513 N.W.2d 615 (Ct. App. 1994).

805.03 Annotation A party’s failure to appear at a scheduled hearing, after writing the court indicating that unless the party heard otherwise from the court the party would consider itself excused, was insufficient to excuse the party’s appearance and was grounds for dismissal of the party under this section. Buchanan v. General Casualty Co., 191 Wis. 2d 1, 528 N.W.2d 457 (Ct. App. 1995).

805.03 Annotation The trial court erred in not considering other less severe sanctions before dismissing an action for failure to comply with a demand for discovery when no bad faith was found. Hudson Diesel, Inc. v. Kenall, 194 Wis. 2d 531, 535 N.W.2d 65 (Ct. App. 1995).

805.03 Annotation A default judgment entered as a sanction is not governed by s. 806.02 and does not require a full evidentiary hearing if damages are contested. The proper form of hearing on damages is left to trial court discretion. Chevron Chemical Co. v. Deloitte & Touche LLP, 207 Wis. 2d 43, 557 N.W.2d 775 (1997), 94-2827.

805.03 Annotation This section and s. 802.10 (7) apply in criminal cases. A court has power to sanction a tardy attorney under these sections. Failure to delineate the reasons for the sanctions is an erroneous exercise of discretion. Anderson v. Circuit Court, 219 Wis. 2d 1, 578 N.W.2d 633 (1998), 96-3281.

805.03 Annotation Counsel’s egregious acts may be imputed to the client. Smith v. Golde, 224 Wis. 2d 518, 592 N.W.2d 287 (Ct. App. 1999), 97-3404.

805.03 Annotation If the constitution or statutes require proof before the circuit court can enter a particular judgment or order, the court cannot enter the judgment or order without the appropriate showing. The circuit court may determine that a party’s action or inaction provides adequate cause for sanctions against that party, but that does not allow the court to dispense with any constitutional or statutory burden of proof that must be satisfied prior to entering a judgment or order. Evelyn C.R. v. Tykila S., 2001 WI 110, 246 Wis. 2d 1, 629 N.W.2d 768, 00-1739.

805.03 Annotation The trial court abused its discretion by ordering the defendant in a civil suit to forego its rights to insurance coverage for punitive damages when the issue of rights to insurance coverage was not before the court. City of West Allis v. Wisconsin Electric Power Co., 2001 WI App 226, 248 Wis. 2d 10, 635 N.W.2d 873, 99-2944.

805.03 Annotation Circuit courts have inherent authority to sanction by dismissal a party who has attempted to suborn perjury from a witness. In assessing the severity of the misconduct and need for an appropriate sanction, the trial court was within its authority to consider a previous attempt to suborn perjury in another case, in addition to the attempt in the case before the court. Schultz v. Sykes, 2001 WI App 255, 248 Wis. 2d 746, 638 N.W.2d 604, 00-0915.

805.03 Annotation The American Rule does not bar courts from exercising their inherent power to assess attorney fees, and, when a court does so, the limitations of fee awards under former s. 814.025, 1997 stats., do not control. Schultz v. Sykes, 2001 WI App 255, 248 Wis. 2d 746, 638 N.W.2d 604, 00-0915.

805.03 Annotation Because a guardian ad litem’s allegedly contumacious act or omission had nothing to do with the violation of a pretrial, scheduling, or procedural order, the circuit court’s authority to sanction the guardian ad litem for noncompliance with its substantive order directing the disposition of a minor’s settlement proceeds was more firmly grounded in s. 785.03 (1) (a). Evans v. Luebke, 2003 WI App 207, 267 Wis. 2d 596, 671 N.W.2d 304, 02-2210.