Chapter 808

CHAPTER 808

APPEALS AND WRITS OF ERROR

808.01   Definitions.

808.02   Writ of error.

808.03   Appeals to the court of appeals.

808.04   Time for appeal to the court of appeals.

808.05   Bypass.

808.07   Relief pending appeal.

808.075   Permitted court actions pending appeal.

808.08   Further proceedings in trial court.

808.09   Reversal, affirmance or modification of judgment.

808.10   Review by the supreme court.

808.11   Printing specifications.

808.01 808.01 Definitions. In this chapter:

808.01(1) (1) “Appeal” means a review in an appellate court by appeal or writ of error authorized by law of a judgment or order of a circuit court.

808.01(2) (2) “Appellate court” means the supreme court under ch. 751 or the court of appeals under ch. 752.

808.01 History History: 1977 c. 187; 1991 a. 189.

808.01 Annotation A party that accepts the benefits of a judgment does not waive the right to take an appeal that does not involve a reversal of that part of the judgment under which the benefit was received. Estreen v. Bluhm, 79 Wis. 2d 142, 255 N.W.2d 473 (1977).

808.01 Annotation Because an appeal to the court of appeals is defined under sub. (1) as a review of a judgment or order of a circuit court, the court of appeals does not have the power of appellate review over decisions of a circuit judge acting in a non-judicial capacity. Schoenhofen v. DOT, 231 Wis. 2d 508, 605 N.W.2d 249 (Ct. App. 1999), 99-0629.

808.02 808.02 Writ of error. A writ of error may be sought in the court of appeals.

808.02 History History: 1977 c. 187.

808.03 808.03 Appeals to the court of appeals.

808.03(1) (1) Appeals as of right. A final judgment or a final order of a circuit court may be appealed as a matter of right to the court of appeals unless otherwise expressly provided by law. A final judgment or final order is a judgment, order or disposition that disposes of the entire matter in litigation as to one or more of the parties, whether rendered in an action or special proceeding, and that is one of the following:

808.03(1)(a) (a) Entered in accordance with s. 806.06 (1) (b) or 807.11 (2).

808.03(1)(b) (b) Recorded in docket entries in ch. 799 cases.

808.03(1)(c) (c) Recorded in docket entries in traffic regulation cases prosecuted in, or following a decision in a municipal court, appealed to, circuit court if a person convicted of a violation may be ordered to pay a forfeiture.

808.03(1)(d) (d) Recorded in docket entries in municipal ordinance violation cases prosecuted in, or following a decision in a municipal court, appealed to, circuit court.

808.03(2) (2) Appeals by permission. A judgment or order not appealable as a matter of right under sub. (1) may be appealed to the court of appeals in advance of a final judgment or order upon leave granted by the court if it determines that an appeal will:

808.03(2)(a) (a) Materially advance the termination of the litigation or clarify further proceedings in the litigation;

808.03(2)(b) (b) Protect the petitioner from substantial or irreparable injury; or

808.03(2)(c) (c) Clarify an issue of general importance in the administration of justice.

808.03(3) (3) Review of an order denying suppression or exclusion of evidence.

808.03(3)(a) (a) An order denying a motion to suppress evidence or a motion challenging the admissibility of a statement of a juvenile may be reviewed upon appeal from a final judgment or order notwithstanding the fact that the judgment or order was entered upon an admission or a plea of no contest to the allegations in the petition.

808.03(3)(b) (b) An order denying a motion to suppress evidence or a motion challenging the admissibility of a statement of a defendant may be reviewed upon appeal from a final judgment or order notwithstanding the fact that the judgment or order was entered upon a plea of guilty or no contest to the information or criminal complaint.

808.03 History History: 1977 c. 187; 1979 c. 192; Sup. Ct. Order, 130 Wis. 2d xix (1986); 1995 a. 139, 224; 1997 a. 35; 2009 a. 27; 2015 a. 12.

808.03 Cross-reference Cross-reference: See s. 767.217 (2) for appeals involving child support and maintenance.

808.03 Note Judicial Council Note, 1979: Sub. (1) is amended to modify the statutory definition of the final judgment or final order that may be appealed as a matter of right to the court of appeals. Most types of cases decided in circuit court have a final judgment or order entered with the office of clerk of court. Because of the volume of traffic regulation and municipal ordinance violation cases prosecuted in circuit court, the prevailing custom in Wisconsin counties is to only record the dispositions of those cases in docket entries. Requiring counties to meet the present statutory requirement in s. 808.03 (1) for the entry of a final judgment or order in all cases for purposes of having an appealable matter is unnecessarily burdensome and costly. The term “traffic regulation cases” refers to only those traffic violation cases in which the penalty is a civil forfeiture. [Bill 396-S]

Effective date note Judicial Council Note, 1986: Sub. (1) is amended to clarify that docket entries in small claims and other ch. 799 cases may be final orders from which an appeal may be taken as of right. See 1979 Judicial Council Note to sub. (1). [Re Order eff. 7-1-86]

808.03 Annotation An appeal cannot be taken from an order before it is entered. Ramsthal Advertising Agency v. Energy Miser, Inc., 90 Wis. 2d 74, 279 N.W.2d 491 (Ct. App. 1979).

808.03 Annotation The test to determine whether a decision is a final order or judgment is whether the trial court contemplated that any additional formal document would be entered with respect to the matter covered in the decision. Fredrick v. City of Janesville, 92 Wis. 2d 685, 285 N.W.2d 655 (1979).

808.03 Annotation A pretrial order denying a motion to dismiss a second trial on double jeopardy grounds is a final order appealable under sub. (2). State v. Jenich, 94 Wis. 2d 74, 288 N.W.2d 114 (1980).

808.03 Annotation An order waiving jurisdiction over a juvenile is appealable under sub. (1). State ex rel. A.E. v. Circuit Court, 94 Wis. 2d 98, 288 N.W.2d 125 (1980).

808.03 Annotation Under sub. (2), both the prosecution and defense may seek permissive appeal of nonfinal orders. State v. Rabe, 96 Wis. 2d 48, 291 N.W.2d 809 (1980).

808.03 Annotation An order denying a motion to dismiss for lack of personal jurisdiction is appealable by permission under sub. (2). Heaton v. Independent Mortuary Corp., 97 Wis. 2d 379, 294 N.W.2d 15 (1980).

808.03 Annotation Orders relating to venue are appealable by permission under sub. (2). Aparacor, Inc. v. DILHR, 97 Wis. 2d 399, 293 N.W.2d 545 (1980).

808.03 Annotation An order enjoining a town from conducting an incorporation referendum under s. 60.81 terminated the only matter in litigation with respect to the town, although ch. 66 incorporation proceedings had not been finally determined by the order. Town of Fitchburg v. City of Madison, 98 Wis. 2d 635, 299 N.W.2d 199 (1980).

808.03 Annotation A court order setting aside an administrative order and remanding the case to the administrative agency disposed of the entire matter in litigation and was appealable as of right. Bearns v. DILHR, 102 Wis. 2d 70, 306 N.W.2d 22 (1981).

808.03 Annotation When a counterclaim for abuse of process, severed for trial, was not yet determined, a judgment dismissing the complaint was not appealable under sub. (1). Brownsell v. Klawitter, 102 Wis. 2d 108, 306 N.W.2d 41 (1981).

808.03 Annotation An order for a new trial is not appealable as of right. Wick v. Mueller, 105 Wis. 2d 191, 313 N.W.2d 799 (1982).

808.03 Annotation The last document in litigation should indicate on its face that for purposes of appeal it is a final order or judgment and that no subsequent document is contemplated. Radoff v. Red Owl Stores, Inc., 109 Wis. 2d 490, 326 N.W.2d 240 (1982).

808.03 Annotation The trial court did not have jurisdiction to award attorney fees after the filing of a notice of appeal of another issue. Hengel v. Hengel, 120 Wis. 2d 522, 355 N.W.2d 846 (Ct. App. 1984).

808.03 Annotation A court commissioner’s order under s. 757.69 (1) dismissing a criminal proceeding was not a “final order” under sub. (1). State v. Trongeau, 135 Wis. 2d 188, 400 N.W.2d 12 (Ct. App. 1986).

808.03 Annotation An appellate court has no jurisdiction to review the denial of a postconviction motion if there is no final written order denying the motion on file in the clerk of court’s office. State v. Malone, 136 Wis. 2d 250, 401 N.W.2d 563 (1987).

808.03 Annotation A criminal defendant’s right to appeal continues after death, regardless of the cause of death. State v. McDonald, 144 Wis. 2d 531, 424 N.W.2d 411 (1988).

808.03 Annotation A judgment resolving the merits of a 42 USC 1983 action is final and appealable under sub. (1) although the issue of attorney fees remains unresolved. ACLU v. Thompson, 155 Wis. 2d 442, 455 N.W.2d 268 (Ct. App. 1990).

808.03 Annotation The circuit court’s retained jurisdiction in board of review certiorari actions under s. 70.47 (13) does not affect the finality of an order for appeal purposes. Steenberg v. Town of Oakfield, 157 Wis. 2d 674, 461 N.W.2d 148 (Ct. App. 1990).

808.03 Annotation An appeal of an oral revocation order under s. 343.305 (10) may not be taken under sub. (1). State v. Borowski, 164 Wis. 2d 730, 476 N.W.2d 316 (Ct. App. 1991).

808.03 Annotation When an appeal is taken as a matter of right, only the final document need be reduced to writing. Nonfinal rulings need not be reduced to writing to be eligible for review under an appeal of a subsequent final order. Jacquart v. Jacquart, 183 Wis. 2d 372, 515 N.W.2d 539 (Ct. App. 1994).

808.03 Annotation Like a judgment of foreclosure and sale in the case of a mortgage, a judgment of strict foreclosure of a land contract is a final judgment that must be appealed from within the time required under s. 808.04. Hackmann v. Behm, 207 Wis. 2d 437, 558 N.W.2d 905 (Ct. App. 1996), 95-3315.

808.03 Annotation An order on the merits of an action is final for purposes of appeal even though a request for litigation expenses is pending. Laube v. City of Owen, 209 Wis. 2d 12, 561 N.W.2d 785 (Ct. App. 1997), 96-2717.

808.03 Annotation A party may waive the right to appeal in a civil case if the party has caused or induced a judgment to be entered or has stipulated to the entry of judgment. By stipulating to the entry of a conditional judgment, a party could not obtain a mandatory appeal of an interlocutory order. Cascade Mountain, Inc. v. Capitol Indemnity Corp., 212 Wis. 2d 265, 569 N.W.2d 45 (Ct. App. 1997), 96-2562. See also Dyer v. Law, 2007 WI App 137, 302 Wis. 2d 207, 733 N.W.2d 328, 06-2957.

808.03 Annotation Absconding from a juvenile treatment center was a rejection by the juvenile of the legitimate means afforded for challenging the court order and resulted in the forfeiture of the right to appeal. State v. Lamontae D.M., 223 Wis. 2d 503, 589 N.W.2d 415 (Ct. App. 1998), 98-1700.

808.03 Annotation The event that triggers the appeal period for a traffic regulation case is the recording of the disposition in the circuit court docket and not the entry of a separate judgment or order in the office of the clerk of circuit court. City of Sheboygan v. Flores, 229 Wis. 2d 242, 598 N.W.2d 307 (Ct. App. 1999), 99-0954.

808.03 Annotation The court of appeals shall grant all petitions for interlocutory appeal arising from a circuit court summary judgment order denying a state official’s claim of qualified immunity under 42 USC 1983 if the order is based on an issue of law. Whether to grant such a petition is discretionary when it arises from a motion to dismiss. Powell v. Cooper, 2001 WI 10, 241 Wis. 2d 153, 622 N.W.2d 265, 98-0012.

808.03 Annotation In the family law context, an order resolving the merits of a child support dispute, but not an attorney’s fee issue, is final within the meaning of sub. (1). Campbell v. Campbell, 2003 WI App 8, 259 Wis. 2d 676, 659 N.W.2d 106, 02-0426.

808.03 Annotation A circuit court order is a final order when: 1) it disposes of the entire matter in litigation under substantive law; and 2) the circuit court considered it to be the last document it would enter in the litigation. Contardi v. American Family Mutual Insurance Co., 2004 WI App 104, 273 Wis. 2d 509, 680 N.W.2d 828, 03-2284.

808.03 Annotation When an order or a judgment is entered that disposes of all of the substantive issues in the litigation, as to one or more parties, as a matter of law, the circuit court intends it to be the final document for purposes of appeal, notwithstanding the label it bears or subsequent actions taken by the circuit court. If an order for judgment meets this criterion, it is a final order. Any historic distinction between an order and a judgment is not dispositive. Harder v. Pfitzinger, 2004 WI 102, 274 Wis. 2d 324, 682 N.W.2d 398, 03-1817.

808.03 Annotation An order granting a plea withdrawal is not final because it plainly anticipates further proceedings in the criminal case. Accordingly, the state was not obligated to file an appeal within the 45-day time period, and its failure to do so was not waiver. State v. Williams, 2005 WI App 221, 287 Wis. 2d 748, 706 N.W.2d 355, 04-1985.

808.03 Annotation A document constitutes the final document for purposes of appeal when it: 1) has been entered by the circuit court; 2) disposes of the entire matter in litigation as to one or more parties; and 3) states on the face of the document that it is the final document for purposes of appeal. When a document would otherwise constitute the final document, but for not including a finality statement, courts will construe the document liberally in favor of preserving the right to appeal. Tyler v. Riverbank, 2007 WI 33, 299 Wis. 2d 751, 728 N.W.2d 686, 05-2336.

808.03 Annotation Deciding a case in the sense of merely analyzing legal issues and resolving questions of law does not dispose of an entire matter in litigation as to one or more parties. The court must act by explicitly dismissing or adjudging the entire matter in litigation as to one or more parties. In order to “dispose” of the matter under sub. (1), a memorandum decision must contain an explicit statement either dismissing or adjudging the entire matter in litigation as to one or more parties. Wambolt v. West Bend Mutual Insurance Co., 2007 WI 35, 299 Wis. 2d 723, 728 N.W.2d 670, 05-1874.

808.03 Annotation Effective September 1, 2007, final orders and judgments shall state that they are final for purposes of appeal. A document does not fulfill this requirement with a particular phrase or magic words, but must make clear on its face, that it is the document from which appeal may follow as a matter of right under sub. (1). Absent such a statement, appellate courts should liberally construe ambiguities to preserve the right of appeal. Wambolt v. West Bend Mutual Insurance Co., 2007 WI 35, 299 Wis. 2d 723, 728 N.W.2d 670, 05-1874.

808.03 Annotation Under Wambolt, 2007 WI 35, neither the label of the document nor the circuit court’s subsequent action (e.g., entering a judgment) is dispositive of the document’s finality. An order may meet the finality criteria, notwithstanding the presence in the order of a reference to a future judgment or the entry of that judgment. Ecker Bros. v. Calumet County, 2008 WI App 81, 312 Wis. 2d 244, 752 N.W.2d 356, 07-2109.

808.03 Annotation A trial court order remanding a case to an administrative agency was not a final order within the meaning of sub. (1) when it did not contain an explicit statement adjudicating the entire matter in litigation as to any party and it scheduled a hearing upon “return” from the agency for the purpose of reviewing the issues identified for consideration on remand. Citizens For U, Inc. v. DNR, 2010 WI App 21, 323 Wis. 2d 767, 780 N.W.2d 194, 08-2537.

808.03 Annotation A traffic forfeiture case qualifies as having been “prosecuted in circuit court” within the meaning of sub. (1) (c) when the case has been appealed to the circuit court following an earlier municipal court decision. It follows that a docket entry of the case’s disposition constitutes a final appealable judgment under sub. (1) (c). Village of McFarland v. Zetzman, 2012 WI App 49, 340 Wis. 2d 700, 811 N.W.2d 822, 11-1440.

808.03 Annotation The prevailing party’s claim for an award of attorney fees due under a contract does not affect the finality of a judgment or order that disposes of the entire matter in litigation as to one or more of the parties. There is no distinction between a claim for attorney fees based on a contract as opposed to one based on a statute. When the recovery of attorney fees is authorized by a statute or a contract, the attorney fees are litigation “disbursements and fees allowed by law” as set forth in s. 814.04 (2). McConley v. T.C. Visions, Inc., 2016 WI App 74, 371 Wis. 2d 658, 885 N.W.2d 816, 16-0671.

808.03 Annotation A proceeding to determine whether a defendant is competent is separate and distinct from the defendant’s underlying criminal proceeding. Thus, an order that a defendant is not competent to proceed is a final order issued in a special proceeding and is appealable as of right pursuant to sub. (1). State v. Scott, 2018 WI 74, 382 Wis. 2d 476, 914 N.W.2d 141, 16-2017.

808.03 Annotation Under Voss, 141 Wis. 267 (1910), the test to be applied in determining the nature of any judicial remedy, as regards whether it is a special proceeding, is whether it is a mere proceeding in an action, or one independently thereof or merely connected therewith. The latter two belong to the special class and the other does not. However, under this test, special proceedings need not occur outside of the underlying actions. L.G. v. Aurora Residential Alternatives, Inc., 2019 WI 79, 387 Wis. 2d 724, 929 N.W.2d 590, 18-0656.

808.03 Annotation An application to stay pursuant to s. 788.02 is a special proceeding within the meaning of sub. (1). When a circuit court addresses such an application, the court resolves an issue separate and distinct from the issues presented in the pending lawsuit, but which is related or connected to that lawsuit. Thus, a circuit court order denying a request to compel arbitration and stay a pending lawsuit is final for the purposes of appeal. L.G. v. Aurora Residential Alternatives, Inc., 2019 WI 79, 387 Wis. 2d 724, 929 N.W.2d 590, 18-0656.

808.03 Annotation In this case, the appellants waived their right to appeal by entering into a consent judgment pursuant to a settlement agreement that contained no preservation of appeal rights and that expressly recited an intent to resolve the case with finality. When a party enters into a consent judgment, as opposed to a mere stipulation on a particular issue, that party is ordinarily considered to have waived any right to appeal from such judgment. Roberts Premier Design Corp. v. Adams, 2021 WI App 52, 399 Wis. 2d 151, 963 N.W.2d 796, 19-1706.

808.03 Annotation The circuit court order granting summary judgment in favor of the city, permitting the city to raze the defendant’s building and awarding the cost of the razing to the city, was a final order under sub. (1). The order explicitly granted the city all of the relief the city requested, and all that remained was the execution of the order, namely the razing at the defendant’s expense and the calculation of the cost of the razing. City of New Lisbon v. Muller, 2023 WI App 65, 410 Wis. 2d 309, 1 N.W.3d 761, 22-1683.

808.03 Annotation Wisconsin Court of Appeals Appellate Jurisdiction. Klein & Leavell. Wis. Law. Sept. 1991.

808.03 Annotation Interlocutory Appeals in Wisconsin. Towers, Arnold, Tess-Mattner, & Levenson. Wis. Law. July 1993.

808.03 Annotation Understanding the New Rules of Appellate Procedure. Stephens. Wis. Law. July 2001.