Chapter 806

806.33   Determining the money of the claim.

806.34   Determining the amount of the money of certain contract claims.

806.35   Asserting and defending a foreign-money claim.

806.36   Judgments and awards on foreign-money claims; times of money conversion; form of judgment.

806.37   Conversions of foreign money in a distribution proceeding.

806.38   Prejudgment and judgment interest.

806.39   Enforcement of foreign judgments.

806.40   Temporarily determining the U.S. dollar value of foreign-money claims for limited purposes.

806.41   Effect of currency revalorizations.

806.42   Supplementary general principles of law.

806.43   Uniformity of application and construction.

806.44   Short title.

Ch. 806 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.

806.01 806.01 Judgment.

806.01(1) (1) 

806.01(1)(a) (a) A judgment is the determination of the action. It may be final or interlocutory.

806.01(1)(b) (b) Each judgment shall specify the relief granted or other determination of the action, and the name and place of residence of each party to the action.

806.01(1)(c) (c) Every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded the relief in the pleadings. If there be no answer the relief granted to the plaintiff shall not exceed that demanded in the complaint. If the amount of money sought was excluded from the demand for judgment, as required under s. 802.02 (1m), the court shall require the plaintiff to specify the amount of money claimed and provide that information to the court and to the other parties prior to the court rendering judgment.

806.01(2) (2) If a partial judgment is proper in an action with several parties, the court in its discretion, may render judgment against one or more of the defendants and dismiss or permit the action to proceed against the others. In case of a finding substantially disposing of a claim on its merits, but leaving an account to be taken or a condition to be performed in order fully to determine the rights of the parties, an interlocutory judgment may be rendered disposing of all issues covered by the finding and reserving final judgment.

806.01 History History: Sup. Ct. Order, 67 Wis. 2d 585, 715 (1975); 1975 c. 218; 1985 a. 145; 1987 a. 256.

806.01 Annotation An order filed after verdict that gave the plaintiff the option of accepting a reduced judgment or a new trial limited to the issue of damages was not a “judgment” under this section. Collins v. Gee, 82 Wis. 2d 376, 263 N.W.2d 158 (1978).

806.01 Annotation Only the damages demanded may be awarded in a default judgment. Because the complaint did not contain a specific damage claim in accordance with s. 802.02 (1m), the plaintiff’s failure to serve an affidavit setting forth the amount of its claimed damages was grounds for reversing a default judgment. Stein v. Illinois State Assistance Commission, 194 Wis. 2d 775, 535 N.W.2d 101 (Ct. App. 1995).

806.01 Annotation While a written judgment clear on its face is not open to construction, the trial court has the authority to construe an ambiguous judgment to effectuate the trial court’s objective. A clarification is not a modification or amendment of the judgment. Because the judge who drafted the ambiguous language has a superior practical knowledge of its meaning, when the judge resolves an ambiguity based on the judge’s experience of the trial and uses a reasonable rationale, an appellate court is to affirm the clarification. Cashin v. Cashin, 2004 WI App 92, 273 Wis. 2d 754, 681 N.W.2d 255, 03-1010.

806.01 Annotation Use of a legal term of art is not necessary to incorporate documents. Documents may be incorporated in an order or other legal document without being physically attached to the document. Carney v. CNH Health & Welfare Plan, 2007 WI App 205, 305 Wis. 2d 443, 740 N.W.2d 625, 06-1529.

806.01 Annotation There need not be a specific injunction against the particular action to apply contempt sanctions to an order. An order or judgment that requires specific conduct, either to do, or to refrain from, specific actions, can be enforced by contempt. Neither s. 785.01 (1) nor case law requires that an order contain the specific term “enjoin” or “injunction” to allow the court to use contempt powers to enforce its orders, nor is the possibility of a separate civil action a bar to use of contempt to enforce a court order. Carney v. CNH Health & Welfare Plan, 2007 WI App 205, 305 Wis. 2d 443, 740 N.W.2d 625, 06-1529.

806.01 Annotation A party to a judgment is obligated to follow the court’s judgment unless it is modified in a proceeding in the circuit court or on appeal. A judgment imposes a legal obligation, and violating it can subject an individual to contempt proceedings. This is true even if the judgment was entered in error, unless the court lacked jurisdiction to impose the judgment. Tensfeldt v. Haberman, 2009 WI 77, 319 Wis. 2d 329, 768 N.W.2d 641, 07-1638.

806.01 Annotation An otherwise valid judgment can be enforced against a legal entity when the judgment is entered against the name under which the legal entity does business. If the name under which a person or corporation does business is “simply another way to refer to” a single legal entity and constitutes no entity distinct from the person or corporation who does business, then a judgment against the “doing business as” name is enforceable against the legal entity from which it is indistinct. Paul Davis Restoration of S.E. Wisconsin, Inc. v. Paul Davis Restoration of Northeast Wisconsin, 2013 WI 49, 347 Wis. 2d 614, 831 N.W.2d 413, 11-1121.

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

806.02 806.02 Default judgment.

806.02(1) (1) A default judgment may be rendered in favor of any party as provided in subs. (1) to (4) if no issue of law or fact has been joined on any claim asserted in a complaint, counterclaim, or cross claim and if the time for joining issue has expired. Any defendant appearing in an action shall be entitled to notice of motion for judgment.

806.02(2) (2) After filing the complaint, counterclaim, or cross claim and proof of service thereof and after filing an affidavit that the party against whom judgment is sought is in default for failure to join issue, a party may move for judgment according to the demand of the complaint, counterclaim, or cross claim. If the amount of money sought was excluded from the demand for judgment, as required under s. 802.02 (1m), the court shall require the moving party to specify the amount of money claimed and provide that information to the court and to the other parties appearing in the action prior to the court rendering judgment. If proof of any fact is necessary for the court to render judgment, the court shall receive the proof.

806.02(3) (3) If a defendant fails to appear in an action within the time fixed in s. 801.09 the court shall, before entering a judgment against such defendant, require proof of service of the summons in the manner required by s. 801.10 and, in addition, shall require further proof as follows:

806.02(3)(a) (a) Where a personal claim is made against the defendant, the court shall require proof by affidavit or other evidence, to be made and filed, of the existence of any fact not shown by the complaint which is needed to establish grounds for personal jurisdiction over the defendant. The court may require such additional proof as the interests of justice require.

806.02(3)(b) (b) Where no personal claim is made against the defendant, the court shall require such proofs, by affidavit or otherwise, as are necessary to show the court’s jurisdiction has been invoked over the status, property or thing which is the subject of the action. The court may require such additional proof as the interests of justice require.

806.02(4) (4) In an action on express contract for recovery of a liquidated amount of money only, the plaintiff may file with the clerk proof of personal service of the summons on one or more of the defendants and an affidavit that the defendant is in default for failure to join issue. The clerk shall render and enter judgment against the defendants who are in default for the amount demanded in the complaint. Leaving the summons at the abode of a defendant is not personal service within the meaning of this subsection.

806.02(5) (5) A default judgment may be rendered against any party who has appeared in the action but who fails to appear at trial. If proof of any fact is necessary for the court to render judgment, the court shall receive the proof.

806.02 History History: Sup. Ct. Order, 67 Wis. 2d 585, 716 (1975); Sup. Ct. Order, 73 Wis. 2d xxxi (1976); Sup. Ct. Order, 82 Wis. 2d ix (1978); Sup. Ct. Order, 101 Wis. 2d xi (1981); Sup. Ct. Order, 109 Wis. 2d xiii (1982); 1987 a. 256; Sup. Ct. Order No. 18-03, 2018 WI 102, 384 Wis. 2d xiii.

806.02 Cross-reference Cross-reference: See s. 801.15 (4) for time required for notice under sub. (2).

806.02 Cross-reference Cross-reference: See s. 802.06 (1) for provision giving the state 45 days to respond to a complaint or counterclaim.

806.02 Cross-reference Cross-reference: See also the notes to s. 806.07 for decisions relating to the vacation of default judgments.

806.02 Note Judicial Council Committee’s Note, 1976: A clerk of court is permitted under s. 806.06 (2) to render the judgment described in ss. 806.02 (4) and 806.03. [Re Order effective Jan. 1, 1977]

806.02 Note Judicial Council Committee’s Note, 1977: Sub. (5) has been modified to allow a judge in a default judgment matter to receive rather than mandatorily hear the proof of any fact necessary for a court to render judgment. This change allows a judge the option of in-chamber consideration of affidavits presented by attorneys. Under the present language the time of the judge may be taken up in open court hearing proof presented by the attorney orally whereas proof submitted by the attorney in the form of affidavits may be just as competent and trustworthy. Under the new language, the judge still retains the option of hearing proof in open court of any fact necessary to render a default judgment. [Re Order effective July 1, 1978]

806.02 Note Judicial Council Note, 1981: Sub. (2) is amended to allow the court to receive proof of facts necessary for default judgment by affidavit rather than hearing. An analogous change was made in sub. (5) in 1977 for the same reasons. [Re Order effective July 1, 1981]

806.02 Note Judicial Council Note, 1982: Sub. (4) is amended by eliminating the requirement that the plaintiff file the complaint in order to receive a default judgment. The complaint will already have been filed with the court when the action was commenced, prior to service of the summons. Section 801.02 (1). [Re Order effective Jan. 1, 1983]

806.02 Note NOTE: Sup. Ct. Order No. 18-03 states: “The Judicial Council Committee Note to Wis. Stat. § 806.02 is not adopted, but will be published and may be consulted for guidance in interpreting and applying the rule.”

806.02 Note Judicial Council Committee Note, 2018: Wis. Stat. s. 802.06 (1) currently requires defendants to file an answer to the complaint. It also requires parties served with a counterclaim or a cross complaint to serve a reply to the counterclaim or an answer to the cross-claim. Wis. Stat. s. 806.02 currently permits a plaintiff to obtain a default judgment against a defendant who fails to comply with s. 802.06 (1), but it does not permit any other party to obtain a default judgment when an opposing party fails to comply with s. 802.06 (1) by filing a response to a counterclaim or cross claim. The Council could find no logical basis for this disparity in treatment. Furthermore, the Council noted that Rule 55 of the Federal Rules of Civil Procedure allows any party to obtain judgment against another party who has failed to plead or otherwise defend against a complaint, counterclaim, or cross claim.

806.02 Annotation A default judgment entered under sub. (4) that was based on an erroneous determination that the claim was on an express contract for a liquidated sum of money was not necessarily void. Wisconsin Public Service Corp. v. Krist, 104 Wis. 2d 381, 311 N.W.2d 624 (1981).

806.02 Annotation The trial court properly granted default judgment against a party who failed to appear at the scheduling conference, but the damage amount was not supported by the record. Gaertner v. 880 Corp., 131 Wis. 2d 492, 389 N.W.2d 59 (Ct. App. 1986).

806.02 Annotation This section provides that the plaintiff may move for default judgment according to the demand of the complaint. Section 802.07 gives no indication that the appellations “plaintiff” and “defendant” may be reversed for purposes of a counterclaim. Pollack v. Calimag, 157 Wis. 2d 222, 458 N.W.2d 591 (Ct. App. 1990).

806.02 Annotation Only the damages demanded may be awarded in a default judgment. Because the complaint did not contain a specific damage claim in accordance with s. 802.02 (1m), the plaintiff’s failure to serve an affidavit setting forth the amount of its claimed damages was grounds for reversing a default judgment. Stein v. Illinois State Assistance Commission, 194 Wis. 2d 775, 535 N.W.2d 101 (Ct. App. 1995).

806.02 Annotation A default judgment entered as a sanction is not governed by this section 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.

806.02 Annotation A circuit court entering default judgment on a punitive damages claim must make inquiry beyond the complaint to determine the merits of the claim and the amount to be awarded. Apex Electronics Corp. v. Gee, 217 Wis. 2d 378, 577 N.W.2d 23 (1998), 97-0353.

806.02 Annotation If proof of damages is necessary, the trial court may hold a hearing, and the defendant has the right to participate and present evidence. Smith v. Golde, 224 Wis. 2d 518, 592 N.W.2d 287 (Ct. App. 1999), 97-3404.

806.02 Annotation An amended complaint that makes no reference to or incorporates any of the original complaint supersedes the original complaint when the amended complaint is filed in court. When such a complaint was filed prior to the time for answering the original complaint had run, it was improper to enter a default judgment on the original complaint. Holman v. Family Health Plan, 227 Wis. 2d 478, 596 N.W.2d 358 (1999), 97-1490.

806.02 Annotation A party in default for failing to answer an original complaint cannot answer an amended complaint, thereby attempting to cure its default, unless the amended complaint relates to a new or additional claim for relief. Ness v. Digital Dial Communications, Inc., 227 Wis. 2d 592, 596 N.W.2d 365 (1999), 96-3436.

806.02 Annotation The decision to grant default judgment is within the sound discretion of the circuit court. The court properly denies a motion for default judgment if it determines that it would be compelled to reopen the judgment if the party opposing the motion would bring a motion to vacate under s. 806.07 (1). In addition, for the preemptive use of s. 806.07 (1) to apply, the court must find that the party opposing the default judgment has a meritorious defense to the underlying action. Shirk v. Bowling, Inc., 2001 WI 36, 242 Wis. 2d 153, 624 N.W.2d 375, 98-3634.

806.02 Annotation That a party may be in default cannot confer a right to judgment upon a claim not recognized by law. The failure of an averment to state a valid claim for relief is fatal to a motion for default judgment. It follows that the failure to aver a claim for relief at all is fatal to a motion for default judgment. Tridle v. Horn, 2002 WI App 215, 257 Wis. 2d 529, 652 N.W.2d 418, 01-3372.

806.02 Annotation Because an amended complaint that makes no reference to the original complaint and incorporates no part of the original complaint by reference supplants the original, any previous joining of issue resulting from answering the original complaint is nullified. To join issue, an answer to the amended complaint is required, and absent an answer the action is subject to default judgment under sub. (1). Schuett v. Hanson, 2007 WI App 226, 305 Wis. 2d 729, 741 N.W.2d 292, 06-3014.

806.02 Annotation If a motion to enlarge time to serve is properly denied, a responsive pleading is not joined and effectively is stricken from the record. A motion for default judgment under sub. (2) is properly granted when the court effectively erases any responsive pleading either by granting a motion to strike or by denying a motion to enlarge time. Keene v. Sippel, 2007 WI App 261, 306 Wis. 2d 643, 743 N.W.2d 838, 06-2580.

806.02 Annotation It lies within the circuit court’s discretion to determine the appropriate procedure for deciding factual issues in default judgment cases and that the defaulting party therefore has no right of trial by jury. The circuit court did not violate the defendant’s right of trial by jury under article I, section 5, of the Wisconsin Constitution when it denied the defendant’s motion for a jury trial on the issue of damages. The defendant waived its right of trial by jury in the manner set forth in this section and s. 804.12 by violating the circuit court’s discovery order and by incurring a judgment by default. Rao v. WMA Securities, Inc., 2008 WI 73, 310 Wis. 2d 623, 752 N.W.2d 220, 06-0813.

806.02 Annotation The timely answer of the codefendant insureds denying the liability of all defendants did not preclude a judgment by default against the insurer on the issue of liability and damages upon the insurer’s acknowledged default. Estate of Otto v. Physicians Insurance Co. of Wisconsin, 2008 WI 78, 311 Wis. 2d 84, 751 N.W.2d 805, 06-1566.

806.02 Annotation As a result of its failure to timely answer, for purposes of a default judgment motion, the defendant surety admitted the allegations necessary for it to be held liable, including the allegations of its principal’s liability. Although the defendant argued its liability was solely derivative of the principal’s liability, as a matter of law, the defendant’s surety status did not save it from default judgment. Backus Electric, Inc. v. Petro Chemical Systems, Inc., 2013 WI App 35, 346 Wis. 2d 668, 829 N.W.2d 516, 11-3004.

806.02 Annotation Too Late? Interests of Justice Trump Default Judgments. Nelson. Wis. Law. Nov. 2012.

806.025 806.025 Payment of judgment in cases involving prisoners.

806.025(1) (1) In this section, “prisoner” has the meaning given in s. 801.02 (7) (a) 2.

806.025(2) (2) If a court enters a judgment for a monetary award on behalf of a prisoner, the court shall do all of the following:

806.025(2)(a) (a) Order that the award be used to satisfy any unpaid court order of restitution against the prisoner and any other civil judgment in favor of a victim of a crime committed by the prisoner. If the amount of the monetary award is insufficient to pay all these unpaid orders and judgments, the orders and judgments shall be paid based on the length of time they have existed, the oldest order being paid first.

806.025(2)(am) (am) If money remains after the payment of all unpaid orders and judgments under par. (a), order reimbursement to the department of justice for an award made under subch. I of ch. 949 for which the department is subrogated under s. 949.15.

806.025(2)(at) (at) If money remains after the payment of reimbursement under par. (am), order the payment of any child or family support owed by the prisoner.

806.025(2)(b) (b) If money remains after the payment of child or family support under par. (at), order the payment of court costs or filing fees previously assessed against the prisoner by a state court that remain unpaid, with the oldest costs or fees being paid first.

806.025(2)(c) (c) If money remains after the payment of all court costs or filing fees under par. (b), order the payment of any unpaid litigation loan, as defined in s. 301.328 (1).

806.025(2)(d) (d) If any money remains after the payments under pars. (a) to (c), request that the department of corrections make a reasonable effort to notify any victims of the crime for which the prisoner was convicted and imprisoned, incarcerated or confined of the pending payment of a monetary award to the prisoner. The department of corrections shall inform the court of whether any victims were notified. The court shall withhold any payment to the prisoner under par. (e) for a reasonable time after the department of corrections notifies the court that a victim was notified so that the victim may have time to petition the court regarding payments to that victim from the remaining money.

806.025(2)(e) (e) Order that any money remaining after all payments are made under pars. (a) to (d) be paid to the prisoner.

806.025 History History: 1997 a. 133; 2007 a. 20.

806.03 806.03 Judgment on admitted claim; order to satisfy. In an action on an express contract for the recovery of a liquidated sum of money only, if the answer admits any part of the plaintiff’s claim or if the answer sets up a counterclaim for an amount less than the plaintiff’s claim and contains no other defense to the action, the clerk, on motion of the plaintiff, shall render and enter judgment for the amount so admitted or for the amount claimed in the complaint less the amount of the defendant’s counterclaim. When the defendant admits part of the plaintiff’s claim to be just, the court, on motion, may order the defendant to satisfy that part of the claim and may enforce the order as it enforces a judgment or provisional remedy.

806.03 History History: Sup. Ct. Order, 67 Wis. 2d 585, 718 (1975); Sup. Ct. Order, 73 Wis. 2d xxxi (1976).

806.03 Note Judicial Council Committee’s Note, 1976: A clerk of court is permitted under s. 806.06 (2) to render the judgment described in ss. 806.02 (4) and 806.03. [Re Order effective Jan. 1, 1977]

806.04 806.04 Uniform declaratory judgments act.

806.04(1) (1) Scope. Courts of record within their respective jurisdictions shall have power to declare rights, status, and other legal relations whether or not further relief is or could be claimed. No action or proceeding shall be open to objection on the ground that a declaratory judgment or decree is prayed for. The declaration may be either affirmative or negative in form and effect; and such declarations shall have the force and effect of a final judgment or decree, except that finality for purposes of filing an appeal as of right shall be determined in accordance with s. 808.03 (1).

806.04(2) (2) Power to construe, etc. Any person interested under a deed, will, written contract or other writings constituting a contract, or whose rights, status or other legal relations are affected by a statute, municipal ordinance, contract or franchise, may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract or franchise and obtain a declaration of rights, status or other legal relations thereunder. No party shall be denied the right to have declared the validity of any statute or municipal ordinance by virtue of the fact that the party holds a license or permit under such statutes or ordinances.

806.04(3) (3) Before breach. A contract may be construed either before or after there has been a breach thereof.

806.04(4) (4) Representatives, etc. Any person interested as or through a personal representative, trustee, guardian, or other fiduciary, creditor, devisee, legatee, heir, next of kin, or cestui que trust in the administration of a trust, or of the estate of a decedent, infant, individual adjudicated incompetent, or insolvent, may have a declaration of rights or legal relations in respect to the administration of the trust or estate for any of the following purposes:

806.04(4)(a) (a) To ascertain any class of creditors, devisees, legatees, heirs, next of kin or others; or

806.04(4)(b) (b) To direct the personal representatives or trustees to do or abstain from doing any particular act in their fiduciary capacity; or

806.04(4)(c) (c) To determine any question arising in the administration of the estate or trust, including questions of construction of wills and other writings.

806.04(5) (5) Enumeration not exclusive. The enumeration in subs. (2), (3) and (4) does not limit or restrict the exercise of the general powers conferred in sub. (1) in any proceeding where declaratory relief is sought, in which a judgment or decree will terminate the controversy or remove an uncertainty.

806.04(6) (6) Discretionary. The court may refuse to render or enter a declaratory judgment or decree where such judgment or decree, if rendered or entered, would not terminate the uncertainty or controversy giving rise to the proceeding.

806.04(7) (7) Review. All orders, judgments and decrees under this section may be reviewed as other orders, judgments and decrees.