Chapter 805

805.14 Annotation A party waives all claims of error not raised in motions after verdict although a timely objection was made at trial. This rule applies to an asserted jury instruction error objected to under s. 805.13 (3). Suchomel v. University of Wisconsin Hospital & Clinics, 2005 WI App 234, 288 Wis. 2d 188, 708 N.W.2d 13, 04-0363.

805.14 Annotation Generally, when jury instructions conform to the statutory requirements of an offense, the court reviews the sufficiency of the evidence by comparison to those jury instructions. State v. Coughlin, 2022 WI 43, 402 Wis. 2d 107, 975 N.W.2d 179, 19-1876.

805.15 805.15 New trials.

805.15(1) (1) Motion. A party may move to set aside a verdict and for a new trial because of errors in the trial, or because the verdict is contrary to law or to the weight of evidence, or because of excessive or inadequate damages, or because of newly-discovered evidence, or in the interest of justice. Motions under this subsection may be heard as prescribed in s. 807.13. Orders granting a new trial on grounds other than in the interest of justice, need not include a finding that granting a new trial is also in the interest of justice.

805.15(2) (2) Order. Every order granting a new trial shall specify the grounds therefor. No order granting a new trial shall be valid or effective unless the reasons that prompted the court to make such order are set forth on the record, or in the order or in a written decision. In such order, the court may grant, deny or defer the awarding of costs.

805.15(3) (3) Except as provided in ss. 974.07 (10) (b) and 980.101 (2) (b), a new trial shall be ordered on the grounds of newly-discovered evidence if the court finds that:

805.15(3)(a) (a) The evidence has come to the moving party’s notice after trial; and

805.15(3)(b) (b) The moving party’s failure to discover the evidence earlier did not arise from lack of diligence in seeking to discover it; and

805.15(3)(c) (c) The evidence is material and not cumulative; and

805.15(3)(d) (d) The new evidence would probably change the result.

805.15(4) (4) Alternate motions; conditional order. If the court grants a motion for judgment notwithstanding the verdict, or a motion to change answer and render judgment in accordance with the answer so changed, or a renewed motion for directed verdict, the court shall also rule on the motion for new trial, if any, by determining whether it should be granted if the judgment is thereafter vacated or reversed, and shall specify the grounds for granting or denying the motion for new trial. If the motion for a new trial is thus conditionally granted and the judgment has been reversed on appeal, the new trial shall proceed unless the appellate court shall have otherwise ordered. In case the motion for a new trial has been conditionally denied, the appellee may assert error in that denial; and if the judgment is reversed on appeal, subsequent proceedings shall be in accordance with the order of the appellate court.

805.15(5) (5) Appeal. If the court denies a motion for judgment notwithstanding the verdict, or a motion to change answer and render judgment in accordance with the answer so changed, or a renewed motion for directed verdict, the party who prevailed on that motion may, as appellee, assert for the first time, grounds which entitle the party to a new trial in the event the appellate court concludes that the trial court erred in denying the motion for judgment notwithstanding the verdict or motion to change answer and render judgment in accordance with the answer so changed, or a renewed motion for directed verdict. If the appellate court reverses the judgment, nothing in this section precludes it from determining that the appellee is entitled to a new trial, or from directing the trial court to determine whether a new trial shall be granted.

805.15(6) (6) Excessive or inadequate verdicts. If a trial court determines that a verdict is excessive or inadequate, not due to perversity or prejudice or as a result of error during trial (other than an error as to damages), the court shall determine the amount which as a matter of law is reasonable, and shall order a new trial on the issue of damages, unless within 10 days the party to whom the option is offered elects to accept judgment in the changed amount. If the option is not accepted, the time period for petitioning the court of appeals for leave to appeal the order for a new trial under ss. 808.03 (2) and 809.50 commences on the last day of the option period.

805.15 History History: Sup. Ct. Order, 67 Wis. 2d 585, 708 (1975); 1975 c. 218; 1979 c. 110; 1983 a. 219; Sup. Ct. Order, 141 Wis. 2d xiii (1987); 2001 a. 16.

805.15 Note Judicial Council Note, 1983: Sub. (6) is amended to codify the holding of Wick v. Mueller, 105 Wis. 2d 191, 313 N.W.2d 749 (1982) that orders for new trials under this subsection are not appealable as of right and that the time period for seeking leave to appeal under ss. 808.03 (2) and 809.50, stats., is computed from the last day of the option period set forth in the trial court’s order. [Bill 151-S]

805.15 Note Judicial Council Note, 1988: Sub. (1) is amended to allow motions for new trial to be heard by telephone conference. [Re Order effective Jan. 1, 1988]

805.15 Annotation A statement that the verdict is contrary to the weight of evidence will not support an order granting a new trial in the interest of justice. DeGroff v. Schmude, 71 Wis. 2d 554, 238 N.W.2d 730 (1976).

805.15 Annotation That an expert listed in a pretrial order was not called as a witness at trial and the expert’s report was admitted did not constitute grounds for granting a new trial. Karl v. Employers Insurance of Wausau, 78 Wis. 2d 284, 254 N.W.2d 255 (1977).

805.15 Annotation If the answer to one material question shows that the jury answered perversely, the court should set aside the entire verdict unless the court is satisfied that the other questions were not affected by the perversity. Fouse v. Persons, 80 Wis. 2d 390, 259 N.W.2d 92 (1977).

805.15 Annotation If there is a reasonable basis for a trial court’s determination under sub. (6) as to the proper verdict amount, the decision will be sustained. Koele v. Radue, 81 Wis. 2d 583, 260 N.W.2d 766 (1978).

805.15 Annotation When a jury award of damages was so inadequate that it indicated prejudice, the trial court did not abuse its discretion by ordering a new trial on all issues. Larry v. Commercial Union Insurance Co., 88 Wis. 2d 728, 277 N.W.2d 821 (1979).

805.15 Annotation An order for a new trial under sub. (6) is not a final order and is not appealable as of right under s. 808.03 (1). Earl v. Marcus, 92 Wis. 2d 13, 284 N.W.2d 690 (Ct. App. 1979).

805.15 Annotation Sub. (6) establishes that one who wishes to take an appeal from an interlocutory order issued by the court must compute the time for appeal from the last day of the option period set forth in the court’s order. Wick v. Mueller, 105 Wis. 2d 191, 313 N.W.2d 799 (1982).

805.15 Annotation A shockingly low award of damages justified a new trial on that issue. Westfall v. Kottke, 110 Wis. 2d 86, 328 N.W.2d 481 (1983).

805.15 Annotation A court may order a retrial under sub. (6) on punitive damages alone. Badger Bearing, Inc. v. Drives & Bearings, Inc., 111 Wis. 2d 659, 331 N.W.2d 847 (Ct. App. 1983).

805.15 Annotation A trial court may not grant a new trial based solely upon unobjected to instructional errors but may use those errors to grant a new trial in the interest of justice. State v. Harp, 150 Wis. 2d 861, 443 N.W.2d 38 (Ct. App. 1989).

805.15 Annotation A new trial in the interest of justice under sub. (1), when the controversy was not fully tried, is not limited to cases of evidentiary error and does not require a showing of a probable different result in the second trial. State v. Harp, 161 Wis. 2d 773, 469 N.W.2d 210 (Ct. App. 1991).

805.15 Annotation The standard for granting a new trial in the interest of justice when the verdict is contrary to the great weight of the evidence is less stringent than for granting a motion challenging the sufficiency of the evidence under s. 805.14. Sievert v. American Family Mutual Insurance Co., 180 Wis. 2d 426, 509 N.W.2d 75 (Ct. App. 1993).

805.15 Annotation A codefendant’s testimony that the defendant was aware of at trial, but unable to present because the codefendant refused to testify on 5th amendment grounds, was not newly discovered evidence. State v. Jackson, 188 Wis. 2d 187, 525 N.W.2d 739 (Ct. App. 1994).

805.16 805.16 Time for motions after verdict.

805.16(1) (1) Motions after verdict shall be filed and served within 20 days after the verdict is rendered, unless the court, within 20 days after the verdict is rendered, sets a longer time by an order specifying the dates for filing motions, briefs or other documents.

805.16(2) (2) The time for hearing arguments on motions after verdict shall be not less than 10 nor more than 60 days after the verdict is rendered, unless enlarged pursuant to motion under s. 801.15 (2) (a).

805.16(3) (3) If within 90 days after the verdict is rendered the court does not decide a motion after verdict on the record or the judge, or the clerk at the judge’s written direction, does not sign an order deciding the motion, the motion is considered denied and judgment shall be entered on the verdict.

805.16(4) (4) Notwithstanding sub. (1), a motion for a new trial based on newly discovered evidence may be made at any time within one year after verdict. Unless an order granting or denying the motion is entered within 90 days after the motion is made, it shall be deemed denied.

805.16(5) (5) The time limits in this section for filing motions do not apply to a motion for a new trial based on newly discovered evidence that is brought under s. 974.06.

805.16 History History: Sup. Ct. Order, 67 Wis. 2d 585, 711 (1975); Sup. Ct. Order, 118 Wis. 2d xiii (1984); Sup. Ct. Order, 136 Wis. 2d xxv (1987); Sup. Ct. Order 160 Wis. 2d xiii (1991); 2001 a. 16.

805.16 Note Judicial Council Note, 1984: The requirement that the judge set dates for filing and hearing motions after verdict is repealed in favor of a time limit for such motions. The prior rule encouraged frivolous motions and caused unnecessary hearings. [Re Order effective July 1, 1984]

805.16 Note Judicial Council Note, 1986: Sub. (1) specifies that the trial court may allow more than 20 days for motions after verdict to be filed, if a schedule for the filing of motions and supporting materials is ordered within that time.

805.16 Note Sub. (2) clarifies that the time for hearing motions after verdict may be enlarged upon motion and good cause shown. However, any such enlargement does not affect the requirement that the motion be decided within 90 days after the verdict is rendered. See sub. (3) and s. 801.15 (2) (c), Stats.

Effective date note Sub. (4) is revised to require that a motion for new trial based on newly discovered evidence be decided within 90 days after it is made. The prior statute required such motions to be decided within 30 days after hearing, but did not require the hearing to be held within any specified time. [Re Order eff. 7-1-87]

Effective date note Judicial Council Note, 1991: Sub. (3) is rewritten to clarify that if a motion after verdict is granted within 90 days, it will not be deemed denied merely because such order is not entered within 90 days after verdict. [Re Order eff. 7-1-91]

805.16 Annotation Motions for directed verdicts and motions to dismiss made at the close of the plaintiff’s case are motions challenging the sufficiency of the evidence under this section. Jos. P. Jansen Co. v. Milwaukee Area District Board of Vocational, Technical & Adult Education, 105 Wis. 2d 1, 312 N.W.2d 813 (1981).

805.16 Annotation Time periods under this section may not be enlarged by showing excusable neglect under s. 801.15 (2) (a). Brookhouse v. State Farm Mutual Automobile Insurance Co., 130 Wis. 2d 166, 387 N.W.2d 82 (Ct. App. 1986).

805.16 Annotation Failure to present timely postverdict motions does not deprive the court of appeals of jurisdiction to review a judgment. Hartford Insurance Co. v. Wales, 138 Wis. 2d 508, 406 N.W.2d 426 (1987).

805.16 Annotation Once the trial court loses authority to set aside a verdict under this section by failing to act within 90 days, the court cannot achieve the same result by vacating the judgment under s. 806.07 (1) (h). Manly v. State Farm Fire & Casualty Co., 139 Wis. 2d 249, 407 N.W.2d 306 (Ct. App. 1987).

805.16 Annotation The trial court is not competent to consider sub. (1) motions if the movant fails to timely file the motions and fails to obtain an extension before expiration of the 20-day period. Ahrens-Cadillac Oldsmobile, Inc. v. Belongia, 151 Wis. 2d 763, 445 N.W.2d 744 (Ct. App. 1989).

805.16 Annotation Trial court actions under this section permitted pending appeal under s. 808.075 are subject to sub. (1) time limits. Schmidt v. Smith, 162 Wis. 2d 363, 469 N.W.2d 855 (Ct. App. 1991).

805.16 Annotation This section applies to trial-related motions. An award of attorney fees is not trial-related. Gorton v. American Cyanamid Co., 194 Wis. 2d 203, 533 N.W.2d 746 (1995).

805.16 Annotation A sexually violent person committed under ch. 980 preserves the right to appeal, as a matter of right, by filing postverdict motions within 20 days of the commitment order. State v. Treadway, 2002 WI App 195, 257 Wis. 2d 467, 651 N.W.2d 334, 00-2957.

805.17 805.17 Trial to the court.

805.17(1) (1) Motion at close of plaintiff’s evidence. After the plaintiff, in an action tried by the court without a jury, has completed the presentation of his or her evidence, the defendant, without waiving his or her right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. The court as trier of the facts may then determine them and render judgment against the plaintiff on that ground or may decline to render any judgment until the close of all the evidence. If the court renders judgment on the merits against the plaintiff, the court shall make findings as provided in sub. (2). Unless the court in its order for dismissal otherwise specifies, a dismissal under this section operates as an adjudication upon the merits.

805.17(2) (2) Effect. In all actions tried upon the facts without a jury or with an advisory jury, the court shall find the ultimate facts and state separately its conclusions of law thereon. The court shall either file its findings and conclusions prior to or concurrent with rendering judgment, state them orally on the record following the close of evidence or set them forth in an opinion or memorandum of decision filed by the court. In granting or refusing interlocutory injunctions the court shall similarly set forth the findings of fact and conclusions of law which constitute the grounds of its action. Requests for findings are not necessary for purposes of review. Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses. The findings of a referee may be adopted in whole or part as the findings of the court. If an opinion or memorandum of decision is filed, it will be sufficient if the findings of ultimate fact and conclusions of law appear therein. If the court directs a party to submit proposed findings and conclusions, the party shall serve the proposed findings and conclusions on all other parties not later than the time of submission to the court. The findings and conclusions or memorandum of decision shall be made as soon as practicable and in no event more than 60 days after the cause has been submitted in final form.

805.17(3) (3) Reconsideration motions. Upon its own motion or the motion of a party made not later than 20 days after entry of judgment, the court may amend its findings or conclusions or make additional findings or conclusions and may amend the judgment accordingly. The motion may be made with a motion for a new trial. If the court amends the judgment, the time for initiating an appeal commences upon entry of the amended judgment. If the court denies a motion filed under this subsection, the time for initiating an appeal from the judgment commences when the court denies the motion on the record or when an order denying the motion is entered, whichever occurs first. If within 90 days after entry of judgment the court does not decide a motion filed under this subsection on the record or the judge, or the clerk at the judge’s written direction, does not sign an order denying the motion, the motion is considered denied and the time for initiating an appeal from the judgment commences 90 days after entry of judgment.

805.17(4) (4) Appeal. In actions tried by the court without a jury, the question of the sufficiency of the evidence to support the findings may be raised on appeal whether or not the party raising the question has objected in the trial court to such findings or moved for new trial.

805.17 History History: Sup. Ct. Order, 67 Wis. 2d 585, 712 (1975); Sup. Ct. Order, 73 Wis. 2d xxxi (1976); Sup. Ct. Order, 107 Wis. 2d xi (1982); Sup. Ct. Order, 130 Wis. 2d xi (1986); Sup. Ct. Order, 160 Wis. 2d xiii (1991); 1993 a. 486.

805.17 Note Judicial Council Committee’s Note, 1976: Sub. (1) is based on the language in Federal Rule 41b, and governs how a court as the trier of the facts handles a motion by a defendant for dismissal after the plaintiff has completed the presentation of his evidence. This adoption of the Federal Rule was the approach taken by the Wisconsin Supreme Court in the case of Household Utilities, Inc. v. Andrews Co., 71 Wis. 2nd 17 (1976). [Re Order effective Jan. 1, 1977]

805.17 Note Judicial Council Note, 1982: Sub. (2) has been amended to allow the filing of the findings and conclusions concurrent with the rendering of the judgment. The changes are intended to eliminate doubts as to the propriety of combining the findings, conclusions and judgment in a single document, simplifying paperwork, minimizing storage space requirements and reducing the likelihood of errors. [Re Order effective July 1, 1982]

Effective date note Judicial Council Note, 1986: Sub. (2) is amended to permit the court to state the findings of fact and conclusions of law on the record in open court, in lieu of filing them. The amendment conforms to the practice authorized under Rule 52 (a), F.R.C.P. [Re Order eff. 7-1-86]

Effective date note Judicial Council Note, 1991: This section permits motions for reconsideration to be made within 20 days after entry of judgment in actions tried to the court. Such motions are deemed denied if not decided within 90 days after entry of judgment. [Re Order eff. 7-1-91]

805.17 Annotation Sub. (3) does not limit a trial court’s discretionary power to grant relief from an order or judgment under s. 806.07 (1) (h) when reasons justifying relief are apparent to the court. Grodin v. Smith, 82 Wis. 2d 667, 264 N.W.2d 239 (1978).

805.17 Annotation Failure to bring a motion under sub. (3) to correct a manifest error constitutes a waiver of the right to have an issue considered on appeal. Schinner v. Schinner, 143 Wis. 2d 81, 420 N.W.2d 381 (Ct. App. 1988).

805.17 Annotation If a motion is filed under sub. (3), the 45-day time for appeal under s. 808.04 (1) applies beginning upon disposal of the motion. Salzman v. DNR, 168 Wis. 2d 523, 484 N.W.2d 337 (Ct. App. 1992).

805.17 Annotation In a trial to the court, the court may not base its decision on affidavits submitted in support of a summary judgment. Proof offered in support of summary judgment is for determining if an issue of fact exists. When one does, summary judgment proof gives way to trial proof. Berna-Mork v. Jones, 173 Wis. 2d 733, 496 N.W.2d 637 (Ct. App. 1992).

805.17 Annotation Sub. (3) modifies the deadline for filing appeals only on reconsideration motions after trials to the court. Continental Casualty Co. v. Milwaukee Metropolitan Sewerage District, 175 Wis. 2d 527, 499 N.W.2d 282 (Ct. App. 1993).

805.17 Annotation Reconsideration assumes a question that has been previously considered. If a party has not appeared and made arguments, the court has not considered the party’s arguments in the first instance and reconsideration is improper. O’Neill v. Buchanan, 186 Wis. 2d 229, 519 N.W.2d 750 (Ct. App. 1994).

805.17 Annotation Although a formal order was subsequently signed, the trial court’s letter to the parties informing them that a motion for reconsideration was denied was a denial “on the record” under sub. (3), and the time for filing an appeal commenced on the date of the letter. Orth v. Ameritrade, Inc., 187 Wis. 2d 162, 522 N.W.2d 30 (Ct. App. 1994).

805.17 Annotation A court’s final written findings of fact and conclusions of law take precedence over an earlier written memorandum or an oral finding not repeated in the final order. When there is a conflict between an ambiguous oral pronouncement and the written judgment, it is proper to look to the written judgment to ascertain the court’s intent. Jackson v. Gray, 212 Wis. 2d 436, 569 N.W.2d 467 (Ct. App. 1997), 95-3168.

805.17 Annotation There is no condition precedent under sub. (3) for reconsideration on the court’s own motion except that the court must act within 20 days of its original decision. Therefore there is no requirement that the reason for reconsideration must have been a subject of the original hearing. Village of Thiensville v. Olsen, 223 Wis. 2d 256, 588 N.W.2d 394 (Ct. App. 1998), 98-2055.

805.17 Annotation Sub. (3) does not apply to reconsiderations of summary or default judgments. Teff v. Unity Health Plans Insurance Corp., 2003 WI App 115, 265 Wis. 2d 703, 666 N.W.2d 38, 02-1319.

805.17 Annotation A tenant in an eviction may move for reconsideration of the eviction judgment under sub. (3) but must take an appeal from the judgment within the time for appeal in s. 799.445. The time for filing an appeal under sub. (3) does not apply. Highland Manor Associates v. Bast, 2003 WI 152, 268 Wis. 2d 1, 672 N.W.2d 709, 02-2799.

805.17 Annotation To prevail on a motion for reconsideration, the movant must present either newly discovered evidence or establish a manifest error of law or fact. A party may not use a motion for reconsideration to introduce new evidence that could have been introduced at the original summary judgment phase. Koepsell’s Olde Popcorn Wagons, Inc. v. Koepsell’s Festival Popcorn Wagons, Ltd., 2004 WI App 129, 275 Wis. 2d 397, 685 N.W.2d 853, 03-0773.

805.17 Annotation When evidence in the record consists of disputed testimony and a video recording, the court of appeals will apply the clearly erroneous standard of review when reviewing the trial court’s findings of fact based on that recording. State v. Walli, 2011 WI App 86, 334 Wis. 2d 402, 799 N.W.2d 898, 10-1256.

805.17 Annotation What You Need to Know: New Electronic Discovery Rules. Sankovitz, Grenig, & Gleisner. Wis. Law. July 2010.

805.18 805.18 Mistakes and omissions; harmless error.

805.18(1) (1) The court shall, in every stage of an action, disregard any error or defect in the pleadings or proceedings which shall not affect the substantial rights of the adverse party.

805.18(2) (2) No judgment shall be reversed or set aside or new trial granted in any action or proceeding on the ground of selection or misdirection of the jury, or the improper admission of evidence, or for error as to any matter of pleading or procedure, unless in the opinion of the court to which the application is made, after an examination of the entire action or proceeding, it shall appear that the error complained of has affected the substantial rights of the party seeking to reverse or set aside the judgment, or to secure a new trial.

805.18 History History: Sup. Ct. Order, 67 Wis. 2d 585, 714 (1975); Sup. Ct. Order No. 96-08, 207 Wis. 2d xv (1997).

805.18 Annotation For an error to “affect the substantial rights” of a party, there must be a reasonable possibility that the error contributed to the outcome of the action. A reasonable possibility of a different outcome is a possibility sufficient to undermine confidence in the outcome. If the error at issue is not sufficient to undermine the reviewing court’s confidence in the outcome of the proceeding, the error is harmless. Evelyn C.R. v. Tykila S., 2001 WI 110, 246 Wis. 2d 1, 629 N.W.2d 768, 00-1739.

805.18 Annotation Error is harmless if it is clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error. State v. Harvey, 2002 WI 93, 254 Wis. 2d 442, 647 N.W.2d 189, 00-0541.

805.18 Annotation Section 971.08 (2), requiring vacation of judgment and permission to withdraw a plea in the event of improper notice of the consequences of the plea on immigration and naturalization, is subject to harmless error analysis under this section and s. 971.26. Douangmala, 2002 WI 62, was objectively wrong because it failed to properly consider the harmless error statutes, this section and s. 971.26, and is thus overruled. The mandatory “shall” in s. 971.08 (2) did not control when both of the harmless error savings statutes also use the mandatory “shall” language. This section and ss. 971.08 (2) and 971.26 are most comprehensibly harmonized by applying harmless error analysis. All of the relevant statutes use “shall,” and, accordingly, none is “more mandatory” than any other. State v. Reyes Fuerte, 2017 WI 104, 378 Wis. 2d 504, 904 N.W.2d 773, 15-2041.