Chapter 805

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 A demand for trial by jury made as herein provided may not be withdrawn without the consent of the parties.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.

805.03 Annotation It is an erroneous exercise of discretion for a circuit court to enter a sanction of dismissal with prejudice, imputing the attorney’s conduct to the client, if the client is blameless. Industrial Roofing Services, Inc. v. Marquardt, 2007 WI 19, 299 Wis. 2d 81, 726 N.W.2d 898, 05-0189.

805.03 Annotation There is no requirement that conduct must be persistent in order to be egregious. When a defendant in a medical malpractice case destroyed all of the defendant’s medical records in a single act, the magnitude of the loss under the circumstances was sufficient to constitute egregious conduct. Morrison v. Rankin, 2007 WI App 186, 305 Wis. 2d 240, 738 N.W.2d 588, 06-0980.

805.03 Annotation In light of the facts and the need of circuit courts to control their calendars to ensure the orderly administration of justice, the circuit court did not erroneously exercise its discretion when it determined that a civil defendant’s violation of a scheduling order was “egregious” and grounds for entering default judgment when the defendant failed to attend the scheduling conference, file a witness list, file an itemization of damages in connection with the defendant’s counterclaim, file a pretrial report, and attend the pretrial conference. East Winds Properties, LLC v. Jahnke, 2009 WI App 125, 320 Wis. 2d 797, 772 N.W.2d 738, 08-2453.

805.03 Annotation When the trial court imposed sanctions because it found that a party had brought what was essentially a motion for reconsideration without any new evidence or evidence of manifest error of law by the trial court, that was a basis for the court to deny the motion for reconsideration. It was not a basis for an award of attorney fees without a finding of bad faith or egregious conduct. No statute authorizes sanctions for bringing a motion for reconsideration, and the trial court made no finding of misconduct nor does the record reveal misconduct. Lee v. Geico Indemnity Co., 2009 WI App 168, 321 Wis. 2d 698, 776 N.W.2d 622, 08-3125.

805.03 Annotation Dismissal for failure to prosecute violated due process requirements when the petitioner had no actual or constructive notice that the petitioner’s conduct might result in dismissal before the motion to dismiss for failure to prosecute was filed. More than notice of a motion to dismiss for failure to prosecute and a hearing are required to provide due process. Before imposing a sanction as drastic as dismissal, advanced notice is required that a party’s conduct might result in dismissal to satisfy due process requirements. Theis v. Short, 2010 WI App 108, 328 Wis. 2d 162, 789 N.W.2d 585, 09-1591.

805.03 Annotation When a circuit court concludes that a party’s failure to follow court orders, although unintentional, is “so extreme, substantial and persistent” that the conduct may be considered egregious, the circuit court may make a finding of egregiousness. Conversely, a party may also act in bad faith, which by its nature cannot be unintentional conduct. To find that a party acts in bad faith, the circuit court must find that the noncomplying party “intentionally or deliberately” delayed, obstructed, or refused to comply with the court order. Dane County Department of Human Services v. Mable K., 2013 WI 28, 346 Wis. 2d 396, 828 N.W.2d 198, 11-0825.

805.04 805.04 Voluntary dismissal: effect thereof.

805.04(1) (1) By plaintiff; by stipulation. An action may be dismissed by the plaintiff without order of court by serving and filing a notice of dismissal at any time before service by an adverse party of responsive pleading or motion or by the filing of a stipulation of dismissal signed by all parties who have appeared in the action. Unless otherwise stated in the notice of dismissal or stipulation, the dismissal is not on the merits, except that a notice of dismissal operates as an adjudication on the merits when filed by a plaintiff who has once dismissed in any court an action based on or including the same claim.

805.04(2) (2) By order of court. Except as provided in sub. (1), an action shall not be dismissed at the plaintiff’s instance save upon order of court and upon such terms and conditions as the court deems proper. Unless otherwise specified in the order, a dismissal under this subsection is not on the merits.

805.04(3) (3) Counterclaim, cross claim and 3rd-party claim. This section applies to the voluntary dismissal of any counterclaim, cross claim, or 3rd-party claim. A voluntary dismissal by the claimant alone shall be made before a responsive pleading is served, or if there is none, before the introduction of evidence at the trial or hearing.

805.04(4) (4) Costs of previously dismissed action. If a plaintiff who has once dismissed an action in any court commences an action based upon or including the same claim against the same defendant, the court may make such order for the payment of costs of the action previously dismissed as it deems proper and may stay proceedings in the action until the plaintiff has complied with the order.

805.04 History History: Sup. Ct. Order, 67 Wis. 2d 585, 691 (1975); 2005 a. 253; 2007 a. 20, 97; 2015 a. 55.

805.04 Annotation Assessment of attorney fees as a condition of voluntary dismissal without prejudice was within the trial court’s discretion. Dunn v. Fred A. Mikkelson, Inc., 88 Wis. 2d 369, 276 N.W.2d 748 (1979).

805.04 Annotation Voluntary dismissal with prejudice rarely entitles the defendant to an award of fees and costs. Bishop v. Blue Cross & Blue Shield United of Wisconsin, 145 Wis. 2d 315, 426 N.W.2d 114 (Ct. App. 1988).

805.04 Annotation A condemnee may voluntarily dismiss an appeal to a circuit court under this section without court order. Dickie v. City of Tomah, 160 Wis. 2d 20, 465 N.W.2d 262 (Ct. App. 1990).

805.04 Annotation If any adverse party to an action files a responsive pleading prior to the time that the plaintiff attempts to dismiss the action under sub. (1), a voluntary dismissal without prejudice is no longer obtainable. Gowan v. McClure, 185 Wis. 2d 903, 519 N.W.2d 692 (Ct. App. 1994).

805.04 Annotation The trial court did not abuse its discretion in granting the plaintiff’s motion for dismissal without prejudice in order that the plaintiff could refile in an attempt to take advantage of a new statutory enactment. The prejudice this section protects against is that of putting the defendant through the expense of a lawsuit without being able to obtain a final determination on the merits, not from being disadvantaged by a legislative policy change. Estate of Engebose v. Moraine Ridge Ltd. Partnership, 228 Wis. 2d 860, 598 N.W.2d 584 (Ct. App. 1999), 98-3019.

805.04 Annotation This section only applies to dismissals; it does not address vacating judgments. Once judgment is entered, there is no action to dismiss. Bank One Wisconsin v. Kahl, 2002 WI App 312, 258 Wis. 2d 937, 655 N.W.2d 525, 02-0835.

805.04 Annotation Sub. (1), the voluntary dismissal statute, does not apply in a CHIPS proceeding because it is different from and inconsistent with s. 48.24 (4), which is construed to provide that a district attorney may withdraw a CHIPS petition only with the approval of the court. State ex rel. Kenneth S. v. Circuit Court, 2008 WI App 120, 313 Wis. 2d 508, 756 N.W.2d 573, 08-0147.

805.04 Annotation If doubt exists regarding the finality of an order of dismissal, the court may look beyond the words “with prejudice” to determine if the dismissal was meant to be conclusive. Brye v. Brakebush, 32 F.3d 1179 (1994).

805.05 805.05 Consolidation; separate trials.

805.05(1) (1) Consolidation.

805.05(1)(a) (a) When actions which might have been brought as a single action under s. 803.04 are pending before the court, it may order a joint hearing or trial of any or all of the claims in the actions; it may order all the actions consolidated; and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.

805.05(1)(b) (b) When actions which might have been brought as a single action under s. 803.04 are pending before different courts, any such action may be transferred upon motion of any party or of the court to another court where the related action is pending. A conference involving both judges and all counsel may be convened on the record as prescribed by s. 807.13 (3). Transfer under this paragraph shall be made only by the joint written order of the transferring court and the court to which the action is transferred.

805.05(2) (2) Separate trials. The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition or economy, or pursuant to s. 803.04 (2) (b), may order a separate trial of any claim, cross claim, counterclaim, or 3rd-party claim, or of any number of claims, always preserving inviolate the right of trial in the mode to which the parties are entitled.

805.05 History History: Sup. Ct. Order, 67 Wis. 2d 585, 692 (1975); Sup. Ct. Order, 141 Wis. 2d xiii (1987); 2005 a. 253; 2007 a. 97.

805.05 Note Judicial Council Note, 1988: Sub. (1) (b) is amended by allowing conferences regarding consolidation of actions to be conducted by telephone conference. [Re Order effective Jan. 1, 1988]

805.05 Annotation The trial court’s order to bifurcate the issues of liability and damages and to try the separate issues before separate juries contravened sub. (2) and could not be reconciled with the requirement of s. 805.09 (2) that the same five-sixths of the jury must agree on all questions necessary to sustain a verdict. Waters v. Pertzborn, 2001 WI 62, 243 Wis. 2d 703, 627 N.W.2d 497, 99-1702.

805.06 805.06 Referees.

805.06(1) (1) A court in which an action is pending may appoint a referee who shall have such qualifications as the court deems appropriate. The fees to be allowed to a referee shall be fixed by the court and shall be charged upon such of the parties or paid out of any fund or subject matter of the action, which is in the custody and control of the court, as the court may direct. The referee shall not retain the referee’s report as security for compensation; but if the party ordered to pay the fee allowed by the court does not pay it after notice and within the time prescribed by the court, the referee is entitled to a writ of execution against the delinquent party.

805.06(2) (2) A reference shall be the exception and not the rule. In actions to be tried by a jury, a reference shall be made only when the issues are complicated; in actions to be tried without a jury, save in matters of account and of difficult computation of damages, a reference shall be made only upon a showing that some exceptional condition requires it.

805.06(3) (3) The order of reference to the referee may specify or limit the referee’s powers and may direct the referee to report only upon particular issues or to do or perform particular acts or to receive and report evidence only and may fix the time and place for beginning and closing the hearings and for the filing of the referee’s report. Subject to the specifications and limitations stated in the order, the referee has and shall exercise the power to regulate all proceedings in every hearing before the referee and to do all acts and take all measures necessary or proper for the efficient performance of duties under the order. The referee may require the production of evidence upon all matters embraced in the reference, including the production of all books, papers, vouchers, documents, and writings applicable thereto. The referee may rule upon the admissibility of evidence unless otherwise directed by the order of reference and has the authority to put witnesses on oath and may personally examine them and may call the parties to the action and examine them upon oath. When a party so requests, the referee shall make a record of the evidence offered and excluded in the same manner and subject to the same limitations as a court sitting without a jury.

805.06(4) (4) 

805.06(4)(a) (a) When a reference is made, the clerk shall forthwith furnish the referee with a copy of the order of reference. Upon receipt thereof unless the order of reference otherwise provides, the referee shall forthwith set a time and place for the first meeting of the parties or their attorneys to be held within 20 days after the date of the order of reference and shall notify the parties or their attorneys. It is the duty of the referee to proceed with all reasonable diligence. Any party, on notice to the parties and the referee, may apply to the court for an order requiring the referee to speed the proceedings and to make the report. If a party fails to appear at the time and place appointed, the referee may proceed ex parte or may adjourn the proceedings to a future day, giving notice to the absent party of the adjournment.

805.06(4)(b) (b) The parties may procure the attendance of witnesses before the referee by the issuance and service of subpoenas. If without adequate excuse a witness fails to appear to give evidence, the witness may be punished as for a contempt and be subjected to the consequences, penalties, and remedies provided in ss. 885.11 and 885.12.

805.06(4)(c) (c) When matters of accounting are in issue, the referee may prescribe the form in which the accounts shall be submitted and in any proper case may require or receive in evidence a statement by a certified public accountant who is called as a witness. Upon objection of a party to any of the items thus submitted or upon a showing that the form of statement is insufficient, the referee may require a different form of statement to be furnished, or the accounts or specific items thereof to be proved by oral examination of the accounting parties or upon written interrogatories or in such other manner as the referee directs.

805.06(5) (5)