Chapter 809

809.01(24) (24) “Opt out” means to cease participation as a voluntary user or to indicate withdrawal from the case as an attorney.

809.01(25) (25) “Paper party” means a party not subject to s. 809.801 (3) (a) who chooses not to participate in the electronic filing system.

809.01(26) (26) “Portable document format” means a universal file format that preserves the fonts, formatting, pagination, and graphics of a source document.

809.01(27) (27) “Proportional font” means a font in which the horizontal space used by a character varies.

809.01(28) (28) “Registration” means entering into an agreement to access the electronic filing system prior to filing documents under s. 801.18 (3) (d) or 809.801 (3) (d).

809.01(29) (29) “Respondent” means a person adverse to the appellant or co-appellant.

809.01(30) (30) “Serif font” means a font that has short ornaments or bars at the upper and lower ends of the main strokes of the characters.

809.01(31) (31) “Traditional methods” means those methods of filing and serving documents, other than electronic filing, provided under statutes and local rules.

809.01(32) (32) “Transmit” means to send or transfer documents and records from one court to another and may be completed by making the documents and records electronically available to the other court.

809.01(33) (33) “User” means an individual who has registered to use the electronic filing system. Users of the electronic filing system shall be individuals, not law firms, agencies, corporations, or other groups.

809.01(34) (34) “Voluntary user” means a party not subject to s. 809.801 (3) (a) who voluntarily registers to use the electronic filing system under s. 809.801 (3) (b).

809.01(35) (35) “Word” means a group consisting of one or more letters, numbers or symbols with a space or punctuation mark preceding and succeeding the group.

809.01 History History: Sup. Ct. Order, 83 Wis. 2d xiii (1978); 1977 c. 449; Sup. Ct. Order No. 93-20, 179 Wis. 2d xxv (1993); Sup. Ct. Order No. 00-02, 2001 WI 39, 242 Wis. 2d xxvii; Sup. Ct. Order No. 15-02, 2015 WI 102, 365 Wis. 2d xix; Sup. Ct. Order No. 20-07, 2021 WI 37, 397 Wis. 2d xiii.

809.01 Note Judicial Council Committee’s Note, 1978: The definitions reflect some of the changes incorporated into the rules. The term “appeal” applies both to an appeal authorized by statute and the writ of error guaranteed by Section 21 of Article I of the Constitution. The objective of these rules is to provide the same procedure for appeals and writs of error. Historically, the review authorized by a writ of error was limited to questions of law, while both the law and the facts could be reviewed on appeal. The Wisconsin Supreme Court does not distinguish between its power in appeals and in writs of error. Although under the former procedure appeals were normally used in civil cases and writs of error in criminal cases, the only differences between them were in nomenclature and method of initiating the review process. There is no reason to retain the formalistic differences between them.

809.01 Note The definitions of the parties to the appeal are intended to change the former statute, section 817.10, under which the party first appealing was the appellant, and all other parties were respondents. This often resulted in a party with interests identical to the appellant being labeled a respondent, while two parties opposed to each other were both labeled respondents. Under this section the party first appealing is the appellant, parties appealing from the same judgment or order not opposed to the appellant are co-appellants, and parties adverse to the appellant or co-appellant are respondents. The terms “plaintiff in error” and “defendant in error” previously used in connection with writs of error are no longer used. [Re Order effective July 1, 1978]

809.01 Note NOTE: Sup. Ct. Order No. 20-07 states that “the Comments to the statutes created pursuant to this order are not adopted, but will be published and may be consulted for guidance in interpreting and applying the rule.”

809.01 Note Comment, 2021: The definitions of s. 809.01 have been broadened to incorporate electronic filing terminology.

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

subch. II of ch. 809 SUBCHAPTER II

CIVIL APPEAL PROCEDURE IN COURT OF APPEALS

809.10 809.10 Rule (Initiating the appeal).

809.10(1) (1) Notice of appeal.

809.10(1)(a) (a) Filing. A person shall initiate an appeal by filing a notice of appeal with the clerk of the circuit court in which the judgment or order appealed from was entered. The clerk of the circuit court may not refuse to accept a notice of appeal for failure to pay the appellate court filing fee required by s. 809.25 (2) (a).

809.10(1)(b) (b) Content. The notice of appeal shall include all of the following:

809.10(1)(b)1. 1. The circuit court case name and number.

809.10(1)(b)2. 2. An identification of the judgment or order from which the person filing the notice intends to appeal and the date on which it was entered.

809.10(1)(b)3. 3. A statement of whether the appeal arises in one of the types of cases specified in s. 752.31 (2).

809.10(1)(b)4. 4. A statement of whether the appeal is to be given preference in the circuit court or court of appeals pursuant to statute.

809.10(1)(b)5. 5. If the appeal is under s. 809.30 or 809.32, a statement of the date of service of the last transcript or copy of the circuit court case record if no postconviction motion is filed, the date of the order deciding postconviction motions, or the date of any other notice-of-appeal deadline that was established by the court of appeals.

809.10(1)(b)6. 6. If counsel is appointed under ch. 977, a copy of the order appointing counsel.

809.10(1)(d) (d) Docketing statement. The person shall file in the circuit court a completed docketing statement on a form prescribed by the court of appeals. The docketing statement shall accompany the notice of appeal. Docketing statements need not be filed in appeals brought under s. 809.105, 809.107, 809.109, 809.32, or 974.06 (7), in cases under ch. 980, or in cases in which a party represents himself or herself. Docketing statements need not be filed in appeals brought under s. 809.30 or 974.05, or by the state or defendant in permissive appeals in criminal cases pursuant to s. 809.50, except that docketing statements shall be filed in cases arising under ch. 48, 51, 55, or 938.

809.10(1)(e) (e) Time for filing. The notice of appeal must be filed within the time specified by law. The filing of a timely notice of appeal is necessary to give the court jurisdiction over the appeal.

809.10(1)(f) (f) Error in content not jurisdictional defect. An inconsequential error in the content of the notice of appeal is not a jurisdictional defect.

809.10(1)(g) (g) Motions under s. 809.41 (1) (a) or (4). A motion for an order or other relief under s. 809.41 (1) (a) or (4), if any, shall be filed in the circuit court and shall accompany the notice of appeal.

809.10(1)(h) (h) Service. For electronic filing users in the circuit court case, receipt of the notice of appeal, docketing statement, and motions filed under s. 809.41 (1) or (4) through the circuit court electronic filing system under s. 801.18 shall constitute service of the documents. Where service on the attorney general is required by s. 809.802 (1), service shall be made as provided in s. 809.802 (2). The appellant shall serve paper parties in the circuit court by traditional methods.

809.10(1)(i) (i) Filing in court of appeals. Subject to s. 809.12, other than the notice of appeal, docketing statement, appellant’s motion under s. 809.41 (1) or (4), if any, and statement on transcript under s. 809.11 (4) (b), which shall be filed in the circuit court, all subsequently filed documents in an appeal shall be filed in the court of appeals.

809.10(2) (2) Multiple appeals.

809.10(2)(a) (a) Joint and co-appeals. If 2 or more persons are each entitled to appeal from the same judgment or order entered in the same action or proceeding in the trial court and their interests are such as to make joinder practicable, they may file a joint notice of appeal or may, after filing separate notices of appeal, proceed as a single appellant. If the persons do not file a joint appeal or elect to proceed as a single appellant, or if their interests are such as to make joinder impracticable, they shall proceed as appellant and co-appellant, with each co-appellant to have the same procedural rights and obligations as the appellant.

809.10(2)(b) (b) Cross-appeal. A respondent who seeks a modification of the judgment or order appealed from or of another judgment or order entered in the same action or proceeding shall file a notice of cross-appeal within the period established by law for the filing of a notice of appeal, or 30 days after the filing of a notice of appeal, whichever is later. A cross-appellant has the same rights and obligations as an appellant under this chapter.

809.10(3) (3) Consolidated appeals in separate cases. The court may consolidate separate appeals in separate actions or proceedings in the trial court upon its own motion, motion of a party, or stipulation of the parties.

809.10(4) (4) Matters reviewable. An appeal from a final judgment or final order brings before the court all prior nonfinal judgments, orders and rulings adverse to the appellant and favorable to the respondent made in the action or proceeding not previously appealed and ruled upon.

809.10 History History: Sup. Ct. Order, 83 Wis. 2d xiii (1978); Sup. Ct. Order, 104 Wis. 2d xi (1981); 1981 c. 390 s. 252; Sup. Ct. Order, 123 Wis. 2d xix (1985); Sup. Ct. Order, 131 Wis. 2d xv (1986); 1987 a. 403; Sup. Ct. Order, 161 Wis. 2d xiii (1991); Sup. Ct. Order No. 93-19, 179 Wis. 2d xxiii; Sup. Ct. Order No. 00-02, 2001 WI 39, 242 Wis. 2d xxvii; Sup. Ct. Order No. 02-01, 2002 WI 120, 255 Wis. 2d xiii; 2005 a. 434; Sup. Ct. Order No. 20-07, 2021 WI 37, 397 Wis. 2d xiii; Sup. Ct. Order No. 23-05, 2024 WI 20, filed 5-2-24, eff. 7-1-24.

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

809.10 Note Court of Appeals Note, 1986: Sub. (1) (a) is amended to require appellants to file a docketing statement in the court of appeals on a form prescribed by the court at the time the notice of appeal is filed in the trial court. The docketing statement will provide the court with information for its expedited appeals program pursuant to s. 809.17 and the rules and procedures set forth in Section VII, Expedited Appeals, of the Court of Appeals Internal Operating Procedures (amended March 1, 1986). Docketing statement forms are available in the offices of clerks of the circuit courts. [Re Order effective January 1, 1987]

809.10 Note Judicial Council Committee’s Note, 1978: Sub. (1) (a) establishes the same procedure for initiating a review by the Court of Appeals whether it be the statutory appeal or constitutional writ of error. Both are begun by filing a notice of appeal in the trial court. The prior procedure under which a person could obtain a writ of error from the Supreme Court and then file it in the trial court at his leisure is eliminated. It is important to recognize that the right to seek review by writ of error as established by the Constitution is not abolished, but the procedure for seeking that review is made uniform with that for filing an appeal.

809.10 Note The second sentence of sub. (1) (b) is designed to change the law as declared in former s. 817.11 (4), and the decisions of the Supreme Court interpreting former s. 269.59 (1), under which the Supreme Court was vested with subject matter jurisdiction when an appealable order was entered. Under former s. 817.11 (4), the notice of appeal was necessary only to confer personal jurisdiction which could have been waived. The court often had to decide whether the respondent by some conduct, such as signing a stipulation or receiving a brief, had waived any objection to personal jurisdiction. The result was that a judgment of a trial court in Wisconsin was never completely final because even after the expiration of the time for an appeal a party could still appeal, and if the respondent failed to object or take some step that could be considered as participating in the appeal prior to objecting, the Supreme Court was able to review the judgment. This section conforms Wisconsin practice to that in the federal system and most other states.

809.10 Note Sub. (2) (a) provides that appellants whose interests are substantially identical may proceed jointly or separately. See Rule 3 (b), Federal Rules of Appellate Procedure (FRAP). If they do not wish to proceed jointly, or their interests are not the same, or if they are challenging from the same judgment or order, the subsequent appeal should be docketed with the first appeal, but the second person appealing has the same procedural rights, such as filing of briefs, as the first appellant. The respondent has separate briefing rights as to each appellant and co-appellant filing a separate brief. It is anticipated under this section that all appeals arising out of the same case filed within the same appeal period will be considered in a single appeal and not be treated as separate cases in the Court of Appeals.

809.10 Note Sub. (2) (b). The respondent who desires to challenge a judgment or order must file a notice of cross-appeal. Notices of review are abolished. Under former s. 817.12, it was very difficult to ascertain when a notice of review or cross-appeal was appropriate. Requiring a notice of cross-appeal in each instance eliminates this confusion. The respondent is given a minimum of 30 days after the filing of the notice of appeal to determine whether to file a cross-appeal. As was the case under former s. 817.12, a respondent loses the right to cross-appeal if the cross-appeal is not filed within the specified time.

809.10 Note Sub. (3). Appeals from judgments or orders in separate cases in the trial court are docketed as separate appeals in the Court of Appeals. If appropriate, these cases can be consolidated after docketing by order of the Court of Appeals. Rule 3 (b), FRAP.

809.10 Note Sub. (4). The provision of former s. 817.34 that an appeal from a final judgment brings before the court for review all of the prior orders entered in the case is continued. This does not apply, however, to any prior final order or judgment which could have been appealed as of right under s. 808.03 (1). Thus a judgment dismissing a codefendant from a case must be appealed immediately and cannot be reviewed when judgment is rendered on the plaintiff’s claim against the other defendants. Nonfinal orders and judgments that are appealed and ruled upon by the Court of Appeals are, of course, not subject to further review upon appeal of the final judgment. This section is also limited to those orders made in favor of the named respondents to prevent the possibility of the court reviewing an order in favor of a person not a party to the appeal.

809.10 Note A change is made in prior law in that an interlocutory judgment, Rule 806.01 (2), which previously must have been appealed within the statutory period from the entry of the interlocutory judgment, Richter v. Standard Manufacturing Co., 224 Wis. 121, 271 N.W. 14 (1937), is now reviewable by the Court of Appeals upon an appeal of the final judgment. The objective is to have only one appeal in each case, absent unusual circumstances which would justify an appeal from a nonfinal order under s. 808.03 (2). [Re Order effective July 1, 1978]

809.10 Note Judicial Council Committee’s Note, 1981: To facilitate the efficient administration of appeals by the court of appeals, sub. (1) (a) is amended to require that the notice of appeal state whether the appeal is in one of the types of cases specified in s. 752.31 (2). [Re Order effective Jan. 1, 1982]

809.10 Note Judicial Council Note, 2001: Former sub. (1) (a) has been repealed and recreated as subs. (1) (a) to (d). Subsection 1 (d) clarifies when a docketing statement must be filed. Former sub. (1) (b) has been repealed and recreated as sub. (1) (e). Subsection (1) (f) codifies existing law. See Northridge Bank v. Community Eye Care Ctr., 94 Wis. 2d 201, 203, 287 N.W.2d 810, 811 (1980); Carrington v. St. Paul Fire & Marine Ins. Co., 169 Wis. 2d 211, 217 n.2, 485 N.W.2d 267, 269 n.2 (1992). Please see s. 809.32 for special requirements for a Notice of Appeal in a No-Merit Report appeal. [Re Order No. 00-02 effective July 1, 2001] 

809.10 Note Judicial Council Note, 2002: See also related changes in ss. 809.40 (3) and 809.50 (3). Prior to 2001 WI 39, effective 7/1/01, s. 809.10 (1) provided that docketing statements were not required in “criminal cases or in cases in which a party appears pro se.” State’s appeals in criminal cases were inadvertently omitted from the list of statutory references that replaced “criminal cases” in the prior statute. Subsection (1) (d) is amended to clarify that docketing statements are not required in state’s appeals in criminal cases. The amendment also clarifies that docketing statements are not required in permissive appeals in criminal cases, but are required in other permissive appeals. [Re Order No. 02-01 effective January 1, 2003]

809.10 Note NOTE: Sup. Ct. Order No. 20-07 states that “the Comments to the statutes created pursuant to this order are not adopted, but will be published and may be consulted for guidance in interpreting and applying the rule.”

809.10 Note Comment, 2021: Sub. (1) (a) adds a provision codifying Douglas v. Dewey, 147 Wis. 2d 328, 338, 433 N.W.2d 243 (1989), holding that payment of the appellate filing fee under s. 809.25 (2) (a) 1. is not a prerequisite to filing a notice of appeal.

809.10 Note To facilitate the adoption of electronic filing and service, three documents will be filed and served in the circuit court case either with the notice of appeal or shortly thereafter: docketing statement, statement on transcript, and optional motions under s. 809.41 (1) and (4). Circuit court electronic filing users are served when they receive these documents through the circuit court electronic filing system. When the attorney general is made a party by operation of s. 809.802 (1), the attorney general will be served through the appellate electronic filing system. Subsequent documents will be filed and served via the appellate electronic filing system.

809.10 Annotation When an appeal is pending, matters not directly concerned with the appeal but related to the case are still properly within the trial court’s jurisdiction. First National Bank of Kenosha v. Schaefer, 91 Wis. 2d 360, 283 N.W.2d 410 (Ct. App. 1979).

809.10 Annotation The filing date stamped on the notice of appeal is not conclusive as to the date of filing. Boston Old Colony Insurance Co. v. International Rectifier Corp., 91 Wis. 2d 813, 284 N.W.2d 93 (1979).

809.10 Annotation A respondent was allowed to challenge a trial court order denying a motion for summary judgment despite the failure to file a notice of cross-appeal. Auric v. Continental Casualty Co., 111 Wis. 2d 507, 331 N.W.2d 325 (1983).

809.10 Annotation Service of the notice of appeal on opposing parties is not necessary to confer jurisdiction on the court of appeals. Rhyner v. Sauk County, 118 Wis. 2d 324, 348 N.W.2d 588 (Ct. App. 1984).

809.10 Annotation Failure to submit the docketing fee within the time specified for filing a notice of appeal does not deprive the court of appeals of jurisdiction. The notice of appeal, not the docketing fee, vests the court with jurisdiction. Douglas v. Dewey, 147 Wis. 2d 328, 433 N.W.2d 243 (1989).

809.10 Annotation The federal prohibition against stacking cross-appeals is not applicable under sub. (2) (b). The time limits under sub. (1) (b) are jurisdictional and may not be extended. Estate of Donnell v. City of Milwaukee, 160 Wis. 2d 529, 466 N.W.2d 670 (Ct. App. 1991).

809.10 Annotation A nonlawyer may not sign and file a notice of appeal on behalf of a corporation. To do so constitutes practicing law without a license in violation of s. 757.30 and voids the appeal. Requiring a lawyer to represent a corporation in filing the notice is constitutional. Jadair Inc. v. United States Fire Insurance Co., 209 Wis. 2d 187, 562 N.W.2d 401 (1997), 95-1946.

809.10 Annotation Section 799.06 (2) authorizes a non-lawyer employee to represent a party to a small claims action at the appellate, as well as trial court, level and is an exception to the rule stated in Jadair, 209 Wis. 2d 187 (1997). Holz v. Busy Bees Contracting, Inc., 223 Wis. 2d 598, 589 N.W.2d 633 (Ct. App. 1998), 98-1076.

809.10 Annotation The failure to sign a notice of appeal can be corrected and does not compel immediate dismissal. State v. Seay, 2002 WI App 37, 250 Wis. 2d 761, 641 N.W.2d 437, 00-3490.

809.10 Annotation Section 753.016 (1) and (2) provides that in Milwaukee County each branch of the circuit court shall have a deputy clerk provided by the clerk of the circuit court. In Milwaukee County, “the clerk of the trial court” under sub. (1) (a) necessarily encompasses the deputy clerk assigned to the specific branch of the circuit court as well as deputy clerks performing duties within the office of the clerk of circuit court. State ex rel. Kelley v. State, 2003 WI App 81, 261 Wis. 2d 803, 661 N.W.2d 854, 02-1495.

809.10 Annotation Appeal of a judgment, the date of which was specified in the notice of appeal, included an appeal of an order for costs entered after that date. A judgment is perfected by the taxation of costs and the insertion of the amount into the judgment so that the order of costs becomes part of the judgment subject to appeal. DeWitt Ross & Stevens, S.C. v. Galaxy Gaming & Racing Ltd. Partnership, 2003 WI App 190, 267 Wis. 2d 233, 670 N.W.2d 74, 02-0359.

809.10 Annotation Affirmed on other grounds. 2004 WI 92, 273 Wis. 2d 577, 682 N.W.2d 839, 02-0359.

809.10 Annotation In order to confer jurisdiction on the court of appeals, a notice of appeal filed by counsel must contain the handwritten signature of an attorney authorized to practice law in Wisconsin. Counsel cannot delegate the duty to affix a signature on a notice of appeal to a person not authorized to practice law in Wisconsin. When a notice of appeal is not signed by an attorney when an attorney is required, the notice of appeal is fundamentally defective and cannot confer jurisdiction. Brown v. MR Group, LLC, 2004 WI App 122, 274 Wis. 2d 804, 683 N.W.2d 481, 03-2309.

809.10 Annotation The plaintiffs in this case were not “respondents” under sub. (4) because they were not named in the notice of appeal, and thus were not “respondents” adverse to the appellants. The appellants could not name the plaintiffs as respondents in the notice of appeal because the appellants were not aggrieved by any final order entered against the appellants and in favor of the plaintiffs. The appellants could not evade the bar to appealing non-final-orders as of right by the expedient of appealing final orders against those named in the notice of appeal in order to get review of non-final orders and rulings favorable to parties who were still active in the litigation. Commerce Bluff One Condominium Ass’n v. Dixon, 2011 WI App 46, 332 Wis. 2d 357, 798 N.W.2d 264, 09-1953.

809.10 Annotation Applying well-established principles of law that apply equally to the United States government when it is a party, a decision not to litigate any of the issues involved in the circuit court precludes the United States from pursuing relief in the court of appeals. Nickel v. United States, 2012 WI 22, 339 Wis. 2d 48, 810 N.W.2d 450, 11-0987.

809.10 Annotation Mechanics of Making an Appeal in the Court of Appeals. Felsenthal. WBB Oct. 1981.

809.10 Annotation Appellate review: Choosing and shaping the proper standard. Leavell. WBB Apr. 1987.

809.10 Annotation Changing standards of appellate review. Leavell. WBB May 1987.

809.103 809.103 Appeals in proceedings related to prisoners.

809.103(1) (1) In this section, “prisoner” has the meaning given in s. 801.02 (7) (a) 2.

809.103(2) (2) The appellate court shall notify the department of justice by a procedure developed by the director of state courts in cooperation with the department of justice when the appellate court rules that an appeal or supervisory writ proceeding brought by a prisoner meets any of the following conditions:

809.103(2)(a) (a) Is frivolous, as determined under s. 802.05 (2) or 895.044.

809.103(2)(b) (b) Is used for any improper purpose, such as to harass, to cause unnecessary delay or to needlessly increase the cost of litigation.

809.103(2)(c) (c) Seeks review of a denial of monetary damages from a defendant who is immune from such relief.

809.103(2)(d) (d) There is no ground upon which relief may be granted.

809.103(3) (3) A prisoner is not relieved from paying the full filing fee related to an appeal or supervisory writ proceeding if the appellate court dismisses the appeal or supervisory writ proceeding for one of the reasons listed in sub. (2).

809.103 History History: 1997 a. 133; Sup. Ct. Order No. 03-06A, 2005 WI 86, 280 Wis. 2d xiii; 2011 a. 2.

809.104 809.104 Appeal of decisions relating to electronics and information technology manufacturing zone.

809.104(1) (1) Applicability. This section applies to the appeal of a judgment or order vacating, enjoining, reviewing, or otherwise relating to a decision by a state or local official, board, commission, condemnor, authority, or department concerning an electronics and information technology manufacturing zone designated under s. 238.396 (1m) and supersedes all inconsistent provisions of this chapter.

809.104(2) (2) Appeal as of right.

809.104(2)(a) (a) Notwithstanding s. 808.03 (1), an appeal from a judgment or order of the trial court vacating, enjoining, reviewing, or otherwise relating to a decision by a state or local official, board, commission, condemnor, authority, or department concerning an electronics and information technology manufacturing zone designated under s. 238.396 (1m) may be taken to as a matter of right and is governed by this section.

809.104(2)(b) (b) A party may initiate an appeal under this section by filing a notice of appeal with the clerk of the trial court in which the order or judgment appealed from was entered and shall specify in the notice of appeal the order or judgment appealed from. The docketing statement required under s. 809.10 (1) (d) shall be filed in the circuit court and shall accompany the notice of appeal. The appellant shall pay the filing fee with the notice of appeal. The clerk of the circuit court shall transmit to the court of appeals, within 3 days after the filing of the notice of appeal, the docketing statement, a copy of the notice of appeal, and a copy of the circuit court record of the case maintained under s. 59.40 (2) (b) or (c).