Chapter 808

808.04 Cross-reference Cross-reference: See s. 809.50 for time to file permissive appeals.

808.04 Note Judicial Council Note, 1983: Sub. (2) requires expedited initiation of appeals in recall and eviction cases as well as cases in which the validity of a state law is attacked in federal district court. Sub. (3) references the appeal deadline for criminal, juvenile, mental commitment and protective placement appeals. Sub. (4) references the appeal deadline for appeals by the state in criminal and children’s code cases. [Bill 151-S]

Effective date note Judicial Council Note, 1986: The amendment to sub. (1) clarifies the time limit for notice of entry by cross-referencing s. 806.06 (5). [Re Order eff. 7-1-86]

Effective date note Judicial Council Note, 1986: Subs. (3) and (4) are amended by removing references to a repealed statute. Sub. (7) requires a party other than the state to commence an appeal from a judgment or order terminating parental rights or granting an adoption by filing notice of intent to pursue relief in the trial court within 40 days after entry. It also prohibits enlargement of this time by the court of appeals. [Re Order eff. 7-1-87]

808.04 Note Judicial Council Note, 1992: Subsection (8) is analogous to Rule (4) (a) (2) of the Federal Rules of Appellate Procedure. It is intended to avoid the delay, confusion and prejudice which can result from dismissing appeals solely because they are filed before the judgment or order appealed from is entered. Appeals from judgments or orders which have not been entered are still dismissable. [Re Order effective July 1, 1992]

808.04 Note Judicial Council Note, 2001: The word “final” has been inserted before “judgment or order” in sub. (1). The amendment specifies that the 45- or 90-day time limit applies in appeals from final orders and the 14-day time limit in s. 809.50 applies to appeals from nonfinal orders. [Re Order No. 00-02 effective July 1, 2001]

808.04 Annotation Notice under sub. (1) may not be given before judgment is entered. Sub-Zero Freezer Co. v. Manhattan Life Insurance Co., 90 Wis. 2d 76, 279 N.W.2d 492 (Ct. App. 1979).

808.04 Annotation When a written notice of entry of judgment showed the incorrect date of entry, the time to appeal was not shortened under sub. (1). Mock v. Czemierys, 113 Wis. 2d 207, 336 N.W.2d 188 (Ct. App. 1983).

808.04 Annotation To shorten the appeal period under sub. (1), a formal, captioned, and signed notice of entry of judgment stating the date of entry must be filed and served on an opposing party within 21 days of the entry date. Soquet v. Soquet, 117 Wis. 2d 553, 345 N.W.2d 401 (1984).

808.04 Annotation The date stamped on the judgment did not control as to the date of actual filing. Litrenta v. In re Estate of Ristau, 144 Wis. 2d 421, 424 N.W.2d 203 (1988).

808.04 Annotation A summary contempt proceeding is not “prosecuted by the state,” and appeal is pursuant to sub. (1). McGee v. Racine County Circuit Court, 150 Wis. 2d 178, 441 N.W.2d 308 (Ct. App. 1989).

808.04 Annotation Under sub. (1), notice of entry of judgment must be given within 21 days of the entry of the judgment, not of its signing, consistent with s. 806.06 (5). Linnmar, Inc. v. First Enterprises, Inc., 161 Wis. 2d 706, 468 N.W.2d 753 (Ct. App. 1991).

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

808.04 Annotation Strict compliance with the procedures for providing notice of entry of judgment is required. Notice of entry of judgment is ineffective if it is mailed to an incorrect address. Nichols v. Conlin, 198 Wis. 2d 287, 542 N.W.2d 194 (Ct. App. 1995), 95-2776.

808.04 Annotation Proceedings under ch. 980 are civil and not criminal. State v. Brunette, 212 Wis. 2d 139, 567 N.W.2d 647 (Ct. App. 1997), 96-2351.

808.04 Annotation When a judge normally presides in one county but is assigned by substitution to a case filed in another county, the filing and entry for appeal purposes occur when the document comes into the possession of the clerk of court in the county in which the case was commenced. State v. Williams, 230 Wis. 2d 50, 601 N.W.2d 838 (Ct. App. 1999), 98-3338.

808.04 Annotation Sub. (8) is applicable to appeals under s. 66.0703 as the result of the application of s. 801.02 (2), which makes chs. 801 to 847 applicable in all special proceedings. Mayek v. Cloverleaf Lakes Sanitary District #1, 2000 WI App 182, 238 Wis. 2d 261, 617 N.W.2d 235, 99-2895.

808.04 Annotation An attorney who is sanctioned by the circuit court for misconduct in a client’s case must file the attorney’s own notice of appeal in order to challenge the sanction and may not intervene in the client’s appeal if the notice of appeal deadline has been missed. Absent the attorney’s filing of a notice of appeal, the court of appeals lacks jurisdiction to consider a challenge to a sanction for the attorney’s misconduct. Ziebell v. Ziebell, 2003 WI App 127, 265 Wis. 2d 664, 666 N.W.2d 107, 02-2552.

808.04 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.

808.04 Annotation The proper framework in which to examine the finality of the orders in this case issued by the circuit court over the course of postjudgment proceedings following remittitur was by focusing on whether the orders resulted in the immediate transfer of title to property. If an order led to such a result, it was a final order for purpose of appeal, and the time for review was immediate. Orlando Residence, Ltd. v. Nelson, 2013 WI App 81, 348 Wis. 2d 565, 834 N.W.2d 416, 12-1528.

808.05 808.05 Bypass. The supreme court may take jurisdiction of an appeal or any other proceeding pending in the court of appeals if:

808.05(1) (1) It grants direct review upon a petition to bypass filed by a party;

808.05(2) (2) It grants direct review upon certification from the court of appeals prior to the court of appeals hearing and deciding the matter; or

808.05(3) (3) It, on its own motion, decides to review the matter directly.

808.05 History History: 1977 c. 187.

808.07 808.07 Relief pending appeal.

808.07(1) (1) Effect of appeal. An appeal does not stay the execution or enforcement of the judgment or order appealed from except as provided in this section or as otherwise expressly provided by law.

808.07(2) (2) Authority of a court to grant relief pending appeal.

808.07(2)(a) (a) During the pendency of an appeal, a trial court or an appellate court may:

808.07(2)(a)1. 1. Stay execution or enforcement of a judgment or order;

808.07(2)(a)2. 2. Suspend, modify, restore or grant an injunction; or

808.07(2)(a)3. 3. Make any order appropriate to preserve the existing state of affairs or the effectiveness of the judgment subsequently to be entered.

808.07(2)(am) (am) During the pendency of an appeal, the trial court may hear and determine a motion filed under s. 806.07.

808.07(2)(b) (b) Except as provided in s. 655.27 (5) (a) 3., relief under this subsection may be conditioned upon the filing of an undertaking in the trial court.

808.07(2m) (2m) Limit on undertaking.

808.07(2m)(a) (a) During the pendency of an appeal of a judgment in any civil action, the court shall set the amount of the undertaking to be furnished by all appellants collectively in order to stay the execution of the judgment during appellate review, but the undertaking shall not exceed $100,000,000.

808.07(2m)(b) (b) Notwithstanding par. (a), if an appellee proves by a preponderance of the evidence that an appellant is dissipating assets outside the ordinary course of business to avoid payment of a judgment, a court may enter any order necessary to protect the appellee and may require the appellant to post a bond in an amount not to exceed the amount of the judgment.

808.07(3) (3) Undertaking for costs. An undertaking for costs is not required unless specifically required by statute, or, except as provided in s. 655.27 (5) (a) 3., by the trial court acting in its discretion.

808.07(4) (4) Proceedings against a surety. A surety on an undertaking is subject to the jurisdiction of the trial court and irrevocably appoints the clerk of that court as the surety’s agent for service of any papers affecting his or her liability on the undertaking. A person may seek to enforce the surety’s liability by filing a motion in the action or proceeding in the trial court in which the undertaking was filed.

808.07(5) (5) Public officials. A person or agency suing or being sued in an official public capacity is not required to execute an undertaking as a condition for relief under this section unless, except as provided in s. 655.27 (5) (a) 3., required by the court in its discretion.

808.07(6) (6) Sureties on undertakings. A surety shall file with the undertaking an affidavit that the surety has a net worth in property within this state not exempt from execution which exceeds the amount of the undertaking, except as provided in s. 632.17 (2). The respondent may by motion object to the sufficiency of a surety within 14 days after service of a copy of the undertaking.

808.07 History History: 1977 c. 187; 1979 c. 32; 1979 c. 110 s. 60 (9); 1983 a. 158, 219; Sup. Ct. Order, 130 Wis. 2d xix (1986); 1985 a. 332; Sup. Ct. Order No. 00-02, 2001 WI 39, 242 Wis. 2d xxvii; 2003 a. 105.

Effective date note Judicial Council Note, 1986: Sub. (2) (am) carries forward the authority of trial courts to hear and determine motions for relief from judgment during the pendency of an appeal. Authority of the appellate court to hear and determine such motions under prior sub. (2) (a) 4. has been repealed. [Re Order eff. 7-1-86]

808.07 Note Judicial Council Note, 2001: Sub. (6) is the first of fifteen statutes scattered throughout the rules in which a 10-day deadline is being changed to a 14-day deadline. Also, 7-day deadlines are being changed to 11-day deadlines. Many of the current deadlines in ch. 809 are either 7 or 10 days and are affected by s. 801.15 (1) (b), which excludes “Saturdays, Sundays and holidays” from time periods “less than 11 days.” Additionally, many time periods in ch. 809 run from the service of a document, and under s. 801.15 (5) (a), when a document is served by mail, 3 days are added to the prescribed period. The interplay of s. 801.15 and ch. 809 causes many of the time periods in ch. 809 to be substantially longer than the number of days specified in the Rules. The varying time periods have made calculation of the court’s deadlines difficult.

808.07 Note The proposed amendment of all of the 7-day or 10-day deadlines to 11 and 14 days, respectively, will remove the impact of s. 801.15 (1) (b) on the Rules of Appellate Procedure. However, there will be little adverse impact on the time actually given to parties. The proposed change will greatly facilitate the court’s calculation of deadlines. If circumstances demand a different time period, the court may set an appropriate deadline under s. 809.82 (2) (a). [Re Order No. 00-02 effective July 1, 2001]

808.07 Annotation A postjudgment order of the circuit court denying a motion under sub. (2) (a) 4. [now sub. (2) (am)] is not reviewable on appeal from the judgment. Chicago & North Western Railroad v. LIRC, 91 Wis. 2d 462, 283 N.W.2d 603 (Ct. App. 1979).

808.07 Annotation Under sub. (1) and s. 808.075 (1), a circuit court has authority to confirm a sheriff’s sale even though an appeal of the judgment of foreclosure and sale is pending. Community National Bank v. O’Neill, 157 Wis. 2d 244, 458 N.W.2d 385 (Ct. App. 1990).

808.07 Annotation A stay pending appeal is appropriate when the moving party: 1) makes a strong showing that it is likely to prevail on the appeal; 2) shows that unless the stay is granted it will suffer irreparable harm; 3) shows that there will be no substantial harm to the other parties; and 4) shows that there will be no harm to the public interest. State v. Gudenschwager, 191 Wis. 2d 431, 529 N.W.2d 225 (1995).

808.07 Annotation The Gudenschwager, 191 Wis. 2d 431 (1995), factors do not provide adequate guidance for granting a stay pending appeal when the judgment sought to be stayed is solely a money judgment. The court must consider: 1) the likelihood of success on appeal; 2) the need to ensure collectibility of the judgment if the appeal is unsuccessful; 3) whether the appellant, if successful, will be able to recover; and 4) the harm to the respondent if the judgment is not paid until the completion of an unsuccessful appeal. Scullion v. Wisconsin Power & Light Co., 2000 WI App 120, 237 Wis. 2d 498, 614 N.W.2d 565, 98-3221.

808.07 Annotation Even if a statutory lis pendens under s. 840.10 is dissolved, common law lis pendens applies and a purchaser who is a party to the relevant litigation takes the property subject to the outcome of the litigation, including appeals. This section does not affect that result. Gaugert v. Duve, 2001 WI 83, 244 Wis. 2d 691, 628 N.W.2d 861, 98-3004.

808.07 Annotation In some cases, executions may be stayed, tolling interest, and in other cases, a court may decline such a request for stay. There is no substantial conflict in these differing results. Estate of Matteson v. Matteson, 2008 WI 48, 309 Wis. 2d 311, 749 N.W.2d 557, 05-2607.

808.07 Annotation In determining whether to grant relief pending appeal, the court of appeals exercises its discretion. The court of appeals should explain its discretionary decision-making to ensure the soundness of that decision-making and to facilitate judicial review. In this case, the court of appeals erroneously exercised its discretion when the court denied the defendant’s motion for relief pending appeal without explaining the reasoning for the discretionary denial decision. State v. Scott, 2018 WI 74, 382 Wis. 2d 476, 914 N.W.2d 141, 16-2017.

808.07 Annotation Involuntary medication orders are subject to an automatic stay pending appeal. On a motion to lift an automatic stay, the state must: 1) make a strong showing that it is likely to succeed on the merits of the appeal; 2) show that the defendant will not suffer irreparable harm if the stay is lifted; 3) show that no substantial harm will come to other interested parties if the stay is lifted; and 4) show that lifting the stay will do no harm to the public interest. State v. Scott, 2018 WI 74, 382 Wis. 2d 476, 914 N.W.2d 141, 16-2017.

808.07 Annotation When reviewing the likelihood of success on appeal in conducting a stay analysis, a circuit court must consider the standard of review, along with the possibility that appellate courts may reasonably disagree with its legal analysis. The probability of success that must be demonstrated is inversely proportional to the amount of irreparable injury the movant will suffer absent the stay. Thus, the greater the potential injury, the less a movant must prove in terms of success on appeal. Waity v. Lemahieu, 2022 WI 6, 400 Wis. 2d 356, 969 N.W.2d 263, 21-0802.

808.07 Annotation In conducting a stay analysis, courts consider whether the movant shows that no substantial harm will come to other interested parties. Courts consider the period of time that the case is on appeal, not any harm that could occur in the future. Courts must consider the extent of harm the non-movant will experience if a stay is entered, but the non-movant is ultimately successful in having the injunction affirmed and reinstated. Thus, the stay analysis is not a mere repetition of any harm analysis conducted by the circuit court when it originally issued an order granting relief, which may consider generally all future harms to the non-movant. Waity v. Lemahieu, 2022 WI 6, 400 Wis. 2d 356, 969 N.W.2d 263, 21-0802.

808.075 808.075 Permitted court actions pending appeal.

808.075(1) (1) In any case, whether or not an appeal is pending, the circuit court may act under ss. 801.18 (16), 804.02 (2), 805.15, 805.16, 805.17 (3), 806.07, 806.08, 806.15 (2), 806.24 (4), 808.07 (1) and (2), and 809.12.

808.075(2) (2) In a case appealed under s. 809.30, the circuit court retains the power to act on all issues until the notice of appeal has been filed with the clerk of the circuit court, except that the circuit court may not act upon any motion to extend a time limit that is specified in s. 809.30. Thereafter, the circuit court may act only as provided in subs. (1) and (4).

808.075(3) (3) In a case not appealed under s. 809.30, the circuit court retains the power to act on all issues until the record has been transmitted to the court of appeals. Thereafter, the circuit court may act only as provided in subs. (1) and (4).

808.075(4) (4) The circuit court may act as to the following despite the pendency of an appeal:

808.075(4)(a) (a) In a case under ch. 48:

808.075(4)(a)1. 1. Review of actions by a guardian under s. 48.023.

808.075(4)(a)2. 2. Review of nonsecure custody orders under s. 48.207.

808.075(4)(a)3. 3. Review of secure detention orders under s. 48.208 and secure detention status reviews under s. 48.209 (1) (e).

808.075(4)(a)4. 4. Hearing for child held in custody under s. 48.21 or an adult expectant mother of an unborn child held in custody under s. 48.213.

808.075(4)(a)5. 5. Hearing upon involuntary removal under s. 48.305.

808.075(4)(a)6. 6. Revision of dispositional order under s. 48.363.

808.075(4)(a)7. 7. Extension of dispositional order under s. 48.365, unless s. 48.368 applies.

808.075(4)(a)8. 8. Review of permanency plan under s. 48.38 (5).

808.075(4)(a)9. 9. Release of confidential information under s. 48.396 or 48.78.

808.075(4)(a)9m. 9m. Review of the conduct of a guardian under s. 48.9795 (10).

808.075(4)(a)10. 10. Revision of guardianship order under s. 48.977 (6).

808.075(4)(a)11. 11. Termination of guardianship under s. 48.977 (7) or 48.9795 (11), including removal of a guardian.

808.075(4)(a)12. 12. Rescission of a guardianship order under s. 48.978 (2) (L) 4., (m) 2. or (n) or (3) (d) 3. or 4., (j) 2. or 3. or (k) 2. or 3.

808.075(4)(a)13. 13. Appointment of a successor guardian under s. 48.9795 (8).

808.075(4)(a)14. 14. Order for visitation under s. 48.9795 (12).

808.075(4)(b) (b) In a case under ch. 51:

808.075(4)(b)1. 1. Disposition, modification and extension of commitment under s. 51.20 (13).

808.075(4)(b)2. 2. Reexamination of commitment under s. 51.20 (16).

808.075(4)(b)3. 3. Enforcement of patient rights under s. 51.61.

808.075(4)(b)4. 4. Commitment, conditional release, recommitment and discharge under s. 971.17 of a person found not guilty by reason of mental disease or defect.

808.075(4)(c) (c) In a case under ch. 55:

808.075(4)(c)1. 1. Protective placement review under s. 55.18, modification under s. 55.16, or termination under s. 55.17.

808.075(4)(c)2. 2. Hearing required upon transfer under s. 55.15.

808.075(4)(c)3. 3. Enforcement of patient’s rights under s. 55.23.

808.075(4)(d) (d) In a case under ch. 767:

808.075(4)(d)1. 1. Revision of orders for legal custody or periods of physical placement under s. 767.41, 767.451, 767.461, or 767.481.

808.075(4)(d)2. 2. Issuance or modification of orders for visitation rights under s. 767.43.

808.075(4)(d)3. 3. Annual adjustment of child or family support under s. 767.553.