Wis. Stat. § 808.03

Appeals to the court of appeals

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808.03 Appeals to the court of appeals. (1) APPEALS may be taken as of right. See 1979 Judicial Council Note to sub. (1). [Re Order eff. 7-1-86] AS OF RIGHT. A final judgment or a final order of a circuit court An appeal cannot be taken from an order before it is entered. Ramsthal Advertis- may be appealed as a matter of right to the court of appeals unless ing Agency v. Energy Miser, Inc., 90 Wis. 2d 74, 279 N.W.2d 491 (Ct. App. 1979). otherwise expressly provided by law. A final judgment or final 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, order is a judgment, order or disposition that disposes of the en- 288 N.W.2d 114 (1980). tire matter in litigation as to one or more of the parties, whether An order waiving jurisdiction over a juvenile is appealable under sub. (1). State rendered in an action or special proceeding, and that is one of the ex rel. A.E. v. Circuit Court, 94 Wis. 2d 98, 288 N.W.2d 125 (1980). Under sub. (2), both the prosecution and defense may seek permissive appeals of following: nonfinal orders. State v. Rabe, 96 Wis. 2d 48, 291 N.W.2d 809 (1980). (a) Entered in accordance with s. 806.06 (1) (b) or 807.11 (2). An order denying a motion to dismiss for lack of personal jurisdiction is appeal- able by permission under sub. (2). Heaton v. Independent Mortuary Corp., 97 Wis. (b) Recorded in docket entries in ch. 799 cases. 2d 379, 294 N.W.2d 15 (1980). (c) Recorded in docket entries in traffic regulation cases pros- 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). ecuted in, or following a decision in a municipal court, appealed In this case, the order enjoining the town from conducting an incorporation refer- to, circuit court if a person convicted of a violation may be or- endum under s. 60.81 terminated the only matter in litigation with respect to the dered to pay a forfeiture. 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 (d) Recorded in docket entries in municipal ordinance viola- (1980). tion cases prosecuted in, or following a decision in a municipal A court order setting aside an administrative order and remanding the case to the court, appealed to, circuit court. 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). (2) APPEALS BY PERMISSION. A judgment or order not ap- When a counterclaim for abuse of process, severed for trial, was not yet deter- pealable as a matter of right under sub. (1) may be appealed to the mined, a judgment dismissing the complaint was not appealable under sub. (1). Brownsell v. Klawitter, 102 Wis. 2d 108, 306 N.W.2d 41 (1981). court of appeals in advance of a final judgment or order upon An order for a new trial is not appealable as of right. Wick v. Mueller, 105 Wis. leave granted by the court if it determines that an appeal will: 2d 191, 313 N.W.2d 799 (1982). (a) Materially advance the termination of the litigation or clar- The last document in litigation should indicate on its face that for purposes of ap- peal it is a final order or judgment and that no subsequent document is contem- ify further proceedings in the litigation; plated. Radoff v. Red Owl Stores, Inc., 109 Wis. 2d 490, 326 N.W.2d 240 (1982). (b) Protect the petitioner from substantial or irreparable in- 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 jury; or 846 (Ct. App. 1984). (c) Clarify an issue of general importance in the administra- In this case, the 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 tion of justice. Wis. 2d 188, 400 N.W.2d 12 (Ct. App. 1986). (3) REVIEW OF AN ORDER DENYING SUPPRESSION OR EXCLU- An appellate court has no jurisdiction to review the denial of a postconviction SION OF EVIDENCE. (a) An order denying a motion to suppress 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). evidence or a motion challenging the admissibility of a statement A criminal defendant’s right to appeal continues after death, regardless of the of a juvenile may be reviewed upon appeal from a final judgment cause of death. State v. McDonald, 144 Wis. 2d 531, 424 N.W.2d 411 (1988). or order notwithstanding the fact that the judgment or order was 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. American entered upon an admission or a plea of no contest to the allega- Civil Liberties Union of Wisconsin Inc. v. Thompson, 155 Wis. 2d 442, 455 N.W.2d tions in the petition. 268 (Ct. App. 1990). A circuit court’s retained jurisdiction in board of review certiorari actions under s. (b) An order denying a motion to suppress evidence or a mo- 70.47 (13) does not affect the finality of an order for appeal purposes. Steenberg v. tion challenging the admissibility of a statement of a defendant Town of Oakfield, 157 Wis. 2d 674, 461 N.W.2d 148 (Ct. App. 1990).

2023-24 Wisconsin Statutes updated through 2025 Wis. Act 137 and through all Supreme Court Orders and Controlled Sub- stances Board Orders filed before and in effect on May 13, 2026. Published and certified under s. 35.18. Changes effective after May 13, 2026, are designated by NOTES. (Published 5-13-26)

808.03 APPEALS AND WRITS OF ERROR

An appeal of an oral revocation order under s. 343.305 (10) may not be taken un- litigation “disbursements and fees allowed by law” as set forth in s. 814.04 (2). Mc- der sub. (1). State v. Borowski, 164 Wis. 2d 730, 476 N.W.2d 316 (Ct. App. 1991). Conley v. T.C. Visions, Inc., 2016 WI App 74, 371 Wis. 2d 658, 885 N.W.2d 816, When an appeal is taken as a matter of right, only the final document need be re- 16-0671. duced to writing. Nonfinal rulings need not be reduced to writing to be eligible for A proceeding to determine whether a defendant is competent is separate and dis- review under an appeal of a subsequent final order. Jacquart v. Jacquart, 183 Wis. tinct from the defendant’s underlying criminal proceeding. Thus, an order that a de- 2d 372, 515 N.W.2d 539 (Ct. App. 1994). fendant is not competent to proceed is a final order issued in a special proceeding Like a judgment of foreclosure and sale in the case of a mortgage, a judgment of and is appealable as of right pursuant to sub. (1). State v. Scott, 2018 WI 74, 382 strict foreclosure of a land contract is a final judgment that must be appealed from Wis. 2d 476, 914 N.W.2d 141, 16-2017. within the time required under s. 808.04. Hackmann v. Behm, 207 Wis. 2d 437, 558 Under Voss, 141 Wis. 267 (1910), the test to be applied in determining the nature N.W.2d 905 (Ct. App. 1996), 95-3315. of any judicial remedy, as regards whether it is a special proceeding, is whether it is An order on the merits of an action is final for purposes of appeal even though a a mere proceeding in an action, or one independently thereof or merely connected request for litigation expenses is pending. Laube v. City of Owen, 209 Wis. 2d 12, therewith. The latter two belong to the special class and the other does not. How- 561 N.W.2d 785 (Ct. App. 1997), 96-2717. ever, under this test, special proceedings need not occur outside of the underlying ac- A party may waive the right to appeal in a civil case if the party has caused or in- tions. L.G. v. Aurora Residential Alternatives, Inc., 2019 WI 79, 387 Wis. 2d 724, duced a judgment to be entered or has stipulated to the entry of judgment. By stipu- 929 N.W.2d 590, 18-0656. lating to the entry of a conditional judgment, a party could not obtain a mandatory An application to stay pursuant to s. 788.02 is a special proceeding within the appeal of an interlocutory order. Cascade Mountain, Inc. v. Capitol Indemnity meaning of sub. (1). When a circuit court addresses such an application, the court Corp., 212 Wis. 2d 265, 569 N.W.2d 45 (Ct. App. 1997), 96-2562. See also Dyer v. resolves an issue that is separate and distinct from the issues presented in the pend- Law, 2007 WI App 137, 302 Wis. 2d 207, 733 N.W.2d 328, 06-2957. ing lawsuit but that is related or connected to that lawsuit. Thus, a circuit court order Absconding from a juvenile treatment center was a rejection by the juvenile of the denying a request to compel arbitration and stay a pending lawsuit is final for the legitimate means afforded for challenging the court order and resulted in the forfei- purposes of appeal. L.G. v. Aurora Residential Alternatives, Inc., 2019 WI 79, 387 ture of the right to appeal. State v. Lamontae D.M., 223 Wis. 2d 503, 589 N.W.2d Wis. 2d 724, 929 N.W.2d 590, 18-0656. 415 (Ct. App. 1998), 98-1700. In this case, the appellants waived their right to appeal by entering into a consent The event that triggers the appeal period for a traffic regulation case is the record- judgment pursuant to a settlement agreement that contained no preservation of ap- ing of the disposition in the circuit court docket and not the entry of a separate judg- peal rights and that expressly recited an intent to resolve the case with finality. ment or order in the office of the clerk of circuit court. City of Sheboygan v. Flores, When a party enters into a consent judgment, as opposed to a mere stipulation on a 229 Wis. 2d 242, 598 N.W.2d 307 (Ct. App. 1999), 99-0954. particular issue, that party is ordinarily considered to have waived any right to ap- peal from such judgment. Roberts Premier Design Corp. v. Adams, 2021 WI App The court of appeals shall grant all petitions for interlocutory appeal arising from 52, 399 Wis. 2d 151, 963 N.W.2d 796, 19-1706. a circuit court summary judgment order denying a state official’s claim of qualified The circuit court order granting summary judgment in favor of the city, permit- immunity under 42 USC 1983 if the order is based on an issue of law. Whether to ting the city to raze the defendant’s building and awarding the cost of the razing to grant such a petition is discretionary when it arises from a motion to dismiss. Powell the city, was a final order under sub. (1). The order explicitly granted the city all of v. Cooper, 2001 WI 10, 241 Wis. 2d 153, 622 N.W.2d 265, 98-0012. the relief the city requested, and all that remained was the execution of the order, In the family law context, an order resolving the merits of a child support dispute, namely the razing at the defendant’s expense and the calculation of the cost of the but not an attorney’s fee issue, is final within the meaning of sub. (1). Campbell v. razing. City of New Lisbon v. Muller, 2023 WI App 65, 410 Wis. 2d 309, 1 N.W.3d Campbell, 2003 WI App 8, 259 Wis. 2d 676, 659 N.W.2d 106, 02-0426. 761, 22-1683. When an order or a judgment is entered that disposes of all of the substantive is- A judgment or order disposes of the entire matter in litigation when the text of sues in the litigation, as to one or more parties, as a matter of law, the circuit court that judgment or order leaves nothing else to be decided as a matter of substantive intends it to be the final document for purposes of appeal, notwithstanding the label law. Circuit courts are required to indicate that their final judgments and orders are it bears or subsequent actions taken by the circuit court. If an order for judgment final for purposes of appeal with a finality statement. However, an incorrect or meets this criterion, it is a final order. Any historic distinction between an order and nonexistent finality statement will not render ambiguous an otherwise unambiguous a judgment is not dispositive. Harder v. Pfitzinger, 2004 WI 102, 274 Wis. 2d 324, final judgment or order. Morway v. Morway, 2025 WI 3, 414 Wis. 2d 378, 15 682 N.W.2d 398, 03-1817. N.W.3d 886, 23-1614. An order granting a plea withdrawal is not final because it plainly anticipates fur- ther proceedings in the criminal case. Accordingly, the state was not obligated to file Wisconsin Court of Appeals Appellate Jurisdiction. Klein & Leavell. Wis. Law. an appeal within the 45-day time period, and its failure to do so was not waiver. Sept. 1991. State v. Williams, 2005 WI App 221, 287 Wis. 2d 748, 706 N.W.2d 355, 04-1985. Interlocutory Appeals in Wisconsin. Towers, Arnold, Tess-Mattner, & Levenson. A document constitutes the final document for purposes of appeal when it: 1) has Wis. Law. July 1993. been entered by the circuit court; 2) disposes of the entire matter in litigation as to Understanding the New Rules of Appellate Procedure. Stephens. Wis. Law. July one or more parties; and 3) states on the face of the document that it is the final doc- 2001. ument for purposes of appeal. When a document would otherwise constitute the fi- How to Appeal Mid-litigation Decisions. Alderman. Wis. Law. Dec. 2014. nal 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, 808.04 Time for appeal to the court of appeals. (1) 2007 WI 33, 299 Wis. 2d 751, 728 N.W.2d 686, 05-2336. INITIATING AN APPEAL. An appeal to the court of appeals must be Deciding a case in the sense of merely analyzing legal issues and resolving ques- tions of law does not dispose of an entire matter in litigation as to one or more par- initiated within 45 days of entry of a final judgment or order ap- ties. The court must act by explicitly dismissing or adjudging the entire matter in lit- pealed from if written notice of the entry of a final judgment or igation 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 ad- order is given within 21 days of the final judgment or order as judging the entire matter in litigation as to one or more parties. Wambolt v. West provided in s. 806.06 (5), or within 90 days of entry if notice is Bend Mutual Insurance Co., 2007 WI 35, 299 Wis. 2d 723, 728 N.W.2d 670, 05- not given, except as provided in this section or otherwise ex- 1874. Effective September 1, 2007, final orders and judgments shall state that they are pressly provided by law. Time limits for seeking review of a non- final for purposes of appeal. A document does not fulfill this requirement with a final judgment or order are established in s. 809.50. particular phrase or magic words but must make clear on its face that it is the docu- ment from which appeal may follow as a matter of right under sub. (1). Absent such (1m) An appeal by a record subject under s. 19.356 shall be a statement, appellate courts should liberally construe ambiguities to preserve the initiated within 20 days after the date of entry of the judgment or right of appeal. Wambolt v. West Bend Mutual Insurance Co., 2007 WI 35, 299 Wis. 2d 723, 728 N.W.2d 670, 05-1874. order appealed from. Under Wambolt, 2007 WI 35, neither the label of the document nor the circuit (1s) An appeal under s. 781.10 (2) (d) 5. shall be initiated court’s subsequent action, such as entering a judgment, is dispositive of the docu- ment’s finality. An order may meet the finality criteria, notwithstanding the pres- within 30 days after the date of entry of the judgment or order ap- ence in the order of a reference to a future judgment or the entry of that judgment. pealed from. Ecker Bros. v. Calumet County, 2008 WI App 81, 312 Wis. 2d 244, 752 N.W.2d 356, 07-2109. (2) An appeal under s. 227.60 or 799.445 shall be initiated A trial court order remanding a case to an administrative agency was not a final within 15 days after entry of judgment or order appealed from. order within the meaning of sub. (1) when it did not contain an explicit statement ad- judicating the entire matter in litigation as to any party and it scheduled a hearing (3) Except as provided in subs. (4) and (7), an appeal in a pro- upon “return” from the agency for the purpose of reviewing the issues identified for ceeding under s. 971.17, a criminal case, or a case under ch. 48, consideration on remand. Citizens For U, Inc. v. DNR, 2010 WI App 21, 323 Wis. 51, 55, 938, or 980 shall be initiated within the time period spec- 2d 767, 780 N.W.2d 194, 08-2537. A traffic forfeiture case qualifies as having been “prosecuted in circuit court” ified in s. 809.30 (2) or 809.32 (2), whichever is applicable. within the meaning of sub. (1) (c) when the case has been appealed to the circuit (4) Except as provided in sub. (7m), an appeal by the state in 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). Vil- a proceeding under s. 971.17, a criminal case under s. 974.05, or lage of McFarland v. Zetzman, 2012 WI App 49, 340 Wis. 2d 700, 811 N.W.2d 822, a case under ch. 48, 938, or 980 shall be initiated within 45 days 11-1440. The prevailing party’s claim for an award of attorney fees due under a contract of entry of the judgment or order appealed from. does not affect the finality of a judgment or order that disposes of the entire matter (6) When a party to an action or special proceeding dies dur- 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 ing the period allowed for appeal, the time to appeal is the time recovery of attorney fees is authorized by a statute or a contract, the attorney fees are permitted by law or 120 days after the party’s death, whichever is

later. If no personal representative qualifies within 60 days after peal 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). the party’s death, any appellant may have a personal representa- Strict compliance with the procedures for providing notice of entry of judgment is tive appointed under s. 856.07 (2). required. Notice of entry of judgment is ineffective if it is mailed to an incorrect ad- dress. Nichols v. Conlin, 198 Wis. 2d 287, 542 N.W.2d 194 (Ct. App. 1995), 95- (7) An appeal by a party other than the state from a judgment 2776. or order granting adoption shall be initiated by filing the notice Proceedings under ch. 980 are civil and not criminal. State v. Brunette, 212 Wis. required by s. 809.30 (2) (b) within 40 days after the date of entry 2d 139, 567 N.W.2d 647 (Ct. App. 1997), 96-2351. When a judge normally presides in one county but is assigned by substitution to a of the judgment or order appealed from. Notwithstanding s. case filed in another county, the filing and entry for appeal purposes occur when the 809.82 (2) (a), this time period may not be enlarged. document comes into the possession of the clerk of court in the county in which the case is commenced. State v. Williams, 230 Wis. 2d 50, 601 N.W.2d 838 (Ct. App. (7m) An appeal from a judgment or order terminating 1999), 98-3338. parental rights or denying termination of parental rights shall be Sub. (8) is applicable to appeals under s. 66.0703 as the result of the application of s. 801.01 (2), which makes chs. 801 to 847 applicable in all special proceedings. initiated by filing the notice required by s. 809.107 (2) within 30 Mayek v. Cloverleaf Lakes Sanitary District #1, 2000 WI App 182, 238 Wis. 2d 261, days after the date of entry of the judgment or order appealed 617 N.W.2d 235, 99-2895. from. An attorney who is sanctioned by a 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 (7p) An appeal from a judgment or order under s. 809.104 may not intervene in the client’s appeal if the notice of appeal deadline has been shall be initiated by filing the notice required by s. 809.104 (2) (b) 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. within 30 days after the date of entry of the judgment or order ap- Ziebell v. Ziebell, 2003 WI App 127, 265 Wis. 2d 664, 666 N.W.2d 107, 02-2552. pealed from. 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 re- (8) If the record discloses that the judgment or order appealed mittitur was by focusing on whether the orders resulted in the immediate transfer of from was entered after the notice of appeal or intent to appeal was 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, filed, the notice shall be treated as filed after that entry and on the 2013 WI App 81, 348 Wis. 2d 565, 834 N.W.2d 416, 12-1528. day of the entry. History: 1977 c. 187; 1979 c. 32 s. 92 (9), (14); 1979 c. 89, 221; 1981 c. 152; 808.05 Bypass. The supreme court may take jurisdiction of 1981 c. 314 ss. 130, 146; 1983 a. 183, 219; 1983 a. 491 s. 23; 1985 a. 182 s. 57; Sup. an appeal or any other proceeding pending in the court of appeals Ct. Order, 130 Wis. 2d xi, xix (1986); Sup. Ct. Order, 136 Wis. 2d xxv (1987); 1989 a. 56 s. 259; 1989 a. 192; 1991 a. 39; Sup. Ct. Order, 168 Wis. 2d xix (1992); 1993 if: a. 395; 1995 a. 77, 275; 1997 a. 133; Sup. Ct. Order No. 00-02, 2001 WI 39, 242 (1) It grants direct review upon a petition to bypass filed by a Wis. 2d xxvii; 2003 a. 47; 2005 a. 293, 434; 2009 a. 26; 2017 a. 58, 258; 2023 a. 16. NOTE: 2003 Wis. Act 47 contains explanatory notes. party; Cross-reference: See s. 809.50 for time to file permissive appeals. (2) It grants direct review upon certification from the court of Judicial Council Note, 1983: Sub. (2) requires expedited initiation of appeals in appeals prior to the court of appeals hearing and deciding the recall and eviction cases as well as cases in which the validity of a state law is at- tacked in federal district court. Sub. (3) references the appeal deadline for criminal, matter; or juvenile, mental commitment and protective placement appeals. Sub. (4) references (3) It, on its own motion, decides to review the matter the appeal deadline for appeals by the state in criminal and children’s code cases. [Bill 151-S] directly. Judicial Council Note, 1986: The amendment to sub. (1) clarifies the time limit History: 1977 c. 187. for notice of entry by cross-referencing s. 806.06 (5). [Re Order eff. 7-1-86] Judicial Council Note, 1986: Subs. (3) and (4) are amended by removing refer- 808.07 Relief pending appeal. (1) EFFECT OF APPEAL. ences to a repealed statute. Sub. (7) requires a party other than the state to com- An appeal does not stay the execution or enforcement of the judg- mence 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 af- ment or order appealed from except as provided in this section or ter entry. It also prohibits enlargement of this time by the court of appeals. [Re Or- as otherwise expressly provided by law. der eff. 7-1-87] Judicial Council Note, 1992: Subsection (8) is analogous to Rule (4) (a) (2) of (2) AUTHORITY OF A COURT TO GRANT RELIEF PENDING AP- the Federal Rules of Appellate Procedure. It is intended to avoid the delay, confu- PEAL. (a) During the pendency of an appeal, a trial court or an sion and prejudice which can result from dismissing appeals solely because they are appellate court may: filed before the judgment or order appealed from is entered. Appeals from judg- ments or orders which have not been entered are still dismissable. [Re Order effec- 1. Stay execution or enforcement of a judgment or order; tive July 1, 1992] 2. Suspend, modify, restore or grant an injunction; or Judicial Council Note, 2001: The word “final” has been inserted before “judg- ment or order” in sub. (1). The amendment specifies that the 45- or 90-day time 3. Make any order appropriate to preserve the existing state limit applies in appeals from final orders and the 14-day time limit in s. 809.50 ap- of affairs or the effectiveness of the judgment subsequently to be plies to appeals from nonfinal orders. [Re Order No. 00-02 effective July 1, 2001] Although a party may move the trial court to reconsider its orders or judgments entered. under former s. 269.46 (3), 1971 stats., the party must present issues other than (am) During the pendency of an appeal, the trial court may those determined by the order or judgment for which review is requested in order to appeal from the order entered on the motion for reconsideration. In this case, the ap- hear and determine a motion filed under s. 806.07. pellants’ motion presented the same issues that the trial court decided when granting (b) Except as provided in s. 655.27 (5) (a) 3., relief under this summary judgment, so the appellants were not entitled to appeal from the order denying their motion for rehearing. Appeal should have been taken from the sum- subsection may be conditioned upon the filing of an undertaking mary judgment. Ver Hagen v. Gibbons, 55 Wis. 2d 21, 197 N.W.2d 752 (1972). in the trial court. Notice under sub. (1) may not be given before judgment is entered. Sub-Zero (2m) LIMIT ON UNDERTAKING. (a) During the pendency of Freezer Co. v. Manhattan Life Insurance Co., 90 Wis. 2d 76, 279 N.W.2d 492 (Ct. App. 1979). an appeal of a judgment in any civil action, the court shall set the When the written notice of entry of judgment showed the incorrect date of entry, amount of the undertaking to be furnished by all appellants col- the time to appeal was not shortened under sub. (1). Mock v. Czemierys, 113 Wis. lectively in order to stay the execution of the judgment during ap- 2d 207, 336 N.W.2d 188 (Ct. App. 1983). To shorten the appeal period under sub. (1), a formal, captioned, and signed no- pellate review, but the undertaking shall not exceed tice of entry of judgment stating the date of entry must be filed and served on an op- $100,000,000. posing party within 21 days of the entry date. Soquet v. Soquet, 117 Wis. 2d 553, 345 N.W.2d 401 (1984). (b) Notwithstanding par. (a), if an appellee proves by a pre- The date stamped on the judgment did not control as to the date of actual filing. ponderance of the evidence that an appellant is dissipating assets Litrenta v. In re Estate of Ristau, 144 Wis. 2d 421, 424 N.W.2d 203 (1988). outside the ordinary course of business to avoid payment of a A summary contempt proceeding is not “prosecuted by the state,” and appeal is judgment, a court may enter any order necessary to protect the pursuant to sub. (1). McGee v. Racine County Circuit Court, 150 Wis. 2d 178, 441 N.W.2d 308 (Ct. App. 1989). appellee and may require the appellant to post a bond in an Under sub. (1), notice of entry of judgment must be given within 21 days of the amount not to exceed the amount of the judgment. entry of judgment, not of 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). (3) UNDERTAKING FOR COSTS. An undertaking for costs is If a motion for reconsideration is filed under s. 805.17 (3), the 45-day time for ap- not required unless specifically required by statute, or, except as

808.07 APPEALS AND WRITS OF ERROR

provided in s. 655.27 (5) (a) 3., by the trial court acting in its 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 discretion. come to other interested parties if the stay is lifted; and 4) show that lifting the stay (4) PROCEEDINGS AGAINST A SURETY. A surety on an under- 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. taking is subject to the jurisdiction of the trial court and irrevoca- When reviewing the likelihood of success on appeal in conducting a stay analysis, bly appoints the clerk of that court as the surety’s agent for ser- a circuit court must consider the standard of review, along with the possibility that vice of any papers affecting his or her liability on the undertak- appellate courts may reasonably disagree with its legal analysis. The probability of success that must be demonstrated is inversely proportional to the amount of ir- ing. A person may seek to enforce the surety’s liability by filing reparable injury the movant will suffer absent the stay. Thus, the greater the poten- a motion in the action or proceeding in the trial court in which the tial 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. undertaking was filed. In conducting a stay analysis, courts consider whether the movant shows that no (5) PUBLIC OFFICIALS. A person or agency suing or being 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 sued in an official public capacity is not required to execute an must consider the extent of harm the non-movant will experience if a stay is entered, undertaking as a condition for relief under this section unless, ex- but the non-movant is ultimately successful in having the injunction affirmed and re- cept as provided in s. 655.27 (5) (a) 3., required by the court in its instated. Thus, the stay analysis is not a mere repetition of any harm analysis con- ducted by the circuit court when it originally issued an order granting relief, which discretion. may consider generally all future harms to the non-movant. Waity v. Lemahieu, (6) SURETIES ON UNDERTAKINGS. A surety shall file with the 2022 WI 6, 400 Wis. 2d 356, 969 N.W.2d 263, 21-0802. undertaking an affidavit that the surety has a net worth in prop- 808.075 Permitted court actions pending appeal. (1) erty within this state not exempt from execution which exceeds In any case, whether or not an appeal is pending, the circuit court the amount of the undertaking, except as provided in s. 632.17 may act under ss. 801.18 (16), 804.02 (2), 805.15, 805.16, 805.17 (2). The respondent may by motion object to the sufficiency of a (3), 806.07, 806.08, 806.15 (2), 806.24 (4), 808.07 (1) and (2), surety within 14 days after service of a copy of the undertaking. and 809.12. 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 (2) In a case appealed under s. 809.30, the circuit court re- 39, 242 Wis. 2d xxvii; 2003 a. 105. tains the power to act on all issues until the notice of appeal has 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 been filed with the clerk of the circuit court, except that the cir- of an appeal. Authority of the appellate court to hear and determine such motions cuit court may not act upon any motion to extend a time limit that under prior sub. (2) (a) 4. has been repealed. [Re Order eff. 7-1-86] is specified in s. 809.30. Thereafter, the circuit court may act 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 dead- only as provided in subs. (1) and (4). line. Also, 7-day deadlines are being changed to 11-day deadlines. Many of the cur- (3) In a case not appealed under s. 809.30, the circuit court re- rent 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 tains the power to act on all issues until the record has been trans- days.” Additionally, many time periods in ch. 809 run from the service of a docu- mitted to the court of appeals. Thereafter, the circuit court may ment, 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 act only as provided in subs. (1) and (4). of the time periods in ch. 809 to be substantially longer than the number of days (4) The circuit court may act as to the following despite the specified in the Rules. The varying time periods have made calculation of the court’s deadlines difficult. pendency of an appeal: The proposed amendment of all of the 7-day or 10-day deadlines to 11 and 14 (a) In a case under ch. 48: days, respectively, will remove the impact of s. 801.15 (1) (b) on the Rules of Appel- late Procedure. However, there will be little adverse impact on the time actually 1. Review of actions by a guardian under s. 48.023. given to parties. The proposed change will greatly facilitate the court’s calculation 2. Review of nonsecure custody orders under s. 48.207. 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, 3. Review of secure detention orders under s. 48.208 and se- 2001] cure detention status reviews under s. 48.209 (1) (e). A postjudgment order of the circuit court denying a motion under sub. (2) (a) 4. [now sub. (2) (am)] is not reviewable on an appeal from the judgment. Chicago & 4. Hearing for child held in custody under s. 48.21 or an adult North Western Railroad v. LIRC, 91 Wis. 2d 462, 283 N.W.2d 603 (Ct. App. 1979). expectant mother of an unborn child held in custody under s. Under sub. (1) and s. 808.075 (1), a circuit court has authority to confirm a sher- 48.213. iff’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. 5. Hearing upon involuntary removal under s. 48.305. 1990). A stay pending appeal is appropriate when the moving party: 1) makes a strong 6. Revision of dispositional order under s. 48.363. showing that it is likely to prevail on the appeal; 2) shows that unless the stay is 7. Extension of dispositional order under s. 48.365, unless s. 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 inter- 48.368 applies. est. State v. Gudenschwager, 191 Wis. 2d 431, 529 N.W.2d 225 (1995). 8. Review of permanency plan under s. 48.38 (5). 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 9. Release of confidential information under s. 48.396 or is solely a money judgment. The court must consider: 1) the likelihood of success 48.78. on appeal; 2) the need to ensure collectibility of the judgment if the appeal is unsuc- cessful; 3) whether the appellant, if successful, will be able to recover; and 4) the 9m. Review of the conduct of a guardian under s. 48.9795 harm to the respondent if the judgment is not paid until the completion of an unsuc- (10). cessful appeal. Scullion v. Wisconsin Power & Light Co., 2000 WI App 120, 237 Wis. 2d 498, 614 N.W.2d 565, 98-3221. 10. Revision of guardianship order under s. 48.977 (6). Even if a statutory lis pendens under s. 840.10 is dissolved, common law lis pen- 11. Termination of guardianship under s. 48.977 (7) or dens applies and a purchaser who is a party to the relevant litigation takes the prop- erty subject to the outcome of the litigation, including appeals. This section does not 48.9795 (11), including removal of a guardian. affect that result. Gaugert v. Duve, 2001 WI 83, 244 Wis. 2d 691, 628 N.W.2d 861, 12. Rescission of a guardianship order under s. 48.978 (2) 98-3004. In some cases, executions may be stayed, tolling interest, and in other cases, a (L) 4., (m) 2. or (n) or (3) (d) 3. or 4., (j) 2. or 3. or (k) 2. or 3. court may decline such a request for stay. There is no substantial conflict in these 13. Appointment of a successor guardian under s. 48.9795 differing results. Estate of Matteson v. Matteson, 2008 WI 48, 309 Wis. 2d 311, 749 N.W.2d 557, 05-2607. (8). In determining whether to grant relief pending appeal, the court of appeals exer- 14. Order for visitation under s. 48.9795 (12). cises its discretion. The court of appeals should explain its discretionary decision- making to ensure the soundness of that decision-making and to facilitate judicial re- (b) In a case under ch. 51: view. In this case, the court of appeals erroneously exercised its discretion when the 1. Disposition, modification and extension of commitment 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. under s. 51.20 (13). 2d 476, 914 N.W.2d 141, 16-2017. 2. Reexamination of commitment under s. 51.20 (16). 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 3. Enforcement of patient rights under s. 51.61.

4. Commitment, conditional release, recommitment and dis- charge under s. 971.17 of a person found not guilty by reason of mental disease or defect. (c) In a case under ch. 55: 1. Protective placement review under s. 55.18, modification under s. 55.16, or termination under s. 55.17. 2. Hearing required upon transfer under s. 55.15. 3. Enforcement of patient’s rights under s. 55.23. (d) In a case under ch. 767: 1. Revision of orders for legal custody or periods of physical placement under s. 767.41, 767.451, 767.461, or 767.481. 2. Issuance or modification of orders for visitation rights un- der s. 767.43. 3. Annual adjustment of child or family support under s. 767.553. 4. Revision of judgment or order for child support, mainte- nance payments or family support payments under s. 767.59 or 767.89. 5. Order for temporary maintenance, temporary child sup- port or for suit money, counsel fees and disbursements in the ap- pellate court under s. 767.273. 6. Property division, where the court has expressly or im- pliedly reserved jurisdiction, provided the court does not revise or modify its final division of property. 7. Vacation or modification of judgment under s. 767.35 (6). 8. Revocation of judgment under s. 767.35 (7). 9. Enforcement of payments under s. 767.77, 767.804 (3), 767.805 (4), or 767.89. 10. Enforcement of orders under s. 767.78, 767.804 (3), 767.805 (4), or 767.89. 11. Enforcement or modification of assignments under s. 767.513 or 767.75. 12. Enforcement or modification of account transfers under s. 767.76. 13. Determination of charges and issuance of repayment or- ders under s. 767.71. (e) In a case under chs. 701 or 853 to 879, any matter, unless the appellate court directs the trial court not to act on specific is- sues or the trial court declines to act because the matter directly affects the issues on appeal. (f) In a case under ch. 54: 1. Review a bond under s. 54.46 (4) or 54.852 (9). 2. Release of deposited funds under s. 54.46 (4) (b) 3. 4. Appointment of successor guardian under s. 54.54 (1). 5. Approval of guardian’s exercise of marital property rights under s. 54.20 (2) (h). 6. Approval of management of property under s. 54.19 or 54.20. 7. Direction for use of estate for benefit of wards under s. 54.19 (4). 8. Examination of annual accounts and assets under ss. 54.62 and 54.66. 9. Removal of guardian under s. 54.68 (4) (d). 10. Determination of petitions for instructions to guardian. 11. Termination of guardianship under s. 54.64. 12. Restoration of specific legal rights under s. 54.64 (2) (c). 13. Authorization of purchase of a home for a ward under s. 54.852 (15) (a). (fn) In a case under ch. 938: 2. Review of nonsecure custody orders under s. 938.207. 3. Review of secure detention orders under s. 938.208 and secure detention status reviews under s. 938.209 (1) (a) 5. 4. Hearing for juvenile held in custody under s. 938.21. 5. Hearing upon involuntary removal under s. 938.305. 6. Revision of dispositional order under s. 938.363. 7. Extension of dispositional order under s. 938.365, unless s. 938.368 applies. 8. Review of permanency plan under s. 938.38 (5). 9. Release of confidential information under s. 938.396 or 938.78. (g) In a criminal case: 1. Release on bond under s. 809.31 or 969.01 (2). 2. Modification or revocation of bond under s. 969.01 (2) (e) or 969.08. 3. Imposition of sentence upon revocation of probation un- der s. 973.10 (2) (a). 4. Determination of sentence credit under s. 973.155. 5. Modification of a condition of probation or extension of probationary term under s. 973.09 (3) (a). 6. Modification of sentence. 7. Commitment, conditional release, recommitment and dis- charge under s. 971.17 of a person found not guilty by reason of mental disease or defect. (h) Commitment, supervised release, recommitment, dis- charge, and postcommitment relief under s. 980.10, 2003 stats., or ss. 980.06, 980.08, 980.09 (4), and 980.101 of a person found to be a sexually violent person under ch. 980. (5) Notwithstanding the limitations of this section, any party may petition the appellate court for remand to the circuit court for action upon specific issues. (6) In addition to sub. (5), the appellate court may remand the record to the circuit court for additional proceedings while the ap- peal is pending. (7) Upon completion of an action taken by the circuit court under sub. (1), (4), (5) or (6) of this section, the clerk shall send a copy of the judgment or order to the appellate court. (8) If an appellate court remands the record to the circuit court for additional proceedings under sub. (5) or (6), the appel- late court, in the pending appeal, may review the judgment or or- der that the circuit court enters following remand. If any party is aggrieved by the judgment or order of the circuit court, the party shall file in the appellate court a written statement of objections to the judgment or order within 14 days after the record is re- turned to the clerk of the appellate court. A party that files a statement of objections need not file an additional notice of ap- peal or cross-appeal. History: Sup. Ct. Order, 146 Wis. 2d xiii (1988); 1989 a. 86; 1993 a. 16, 446, 479, 481; 1995 a. 38, 73, 77, 275; 1997 a. 35, 191, 292, 296, 334; 1999 a. 9; Sup. Ct. Order No. 00-02, 2001 WI 39, 242 Wis. 2d xxvii; 2001 a. 16; 2005 a. 264, 387, 434; 2005 a. 443 ss. 263, 265; Sup. Ct. Order No. 14-03, 2016 WI 29, 368 Wis. 2d xiii; 2017 a. 365 s. 111; 2019 a. 95, 109; 2021 a. 238 ss. 44, 45; 2021 a. 240 s. 30. Judicial Council Note, 1988: In re Marriage of Hengel v. Hengel, 120 Wis. 2d 522, 355 N. W. 2d 846 (Ct. App. 1984), the court of appeals held that since there is no specific statutory exception, the trial court had no competence to enter an order requiring the husband to contribute to his wife’s attorney’s fees for representation in the trial court after a notice of appeal had been filed. Section 808.075 is created to specify the actions that may be taken in circuit court after a notice of appeal has been filed in cases appealed under s. 809.30 and after transmittal of the record to an appellate court in other cases. Matters affecting trusts and estates have historically been treated as a series of special proceedings, and the trial court is charged with ongoing supervision and ad- ministrative duties affecting such matters. Because of the ongoing involvement of the trial court, sub. (4) (e) reserves full competence to act, unless it is determined that competence should be restricted as to specific issues. [Re Order effective Jan. 1, 1989] Judicial Council Note, 2001: The second sentence in sub. (2) is a codification of State v. Harris, 149 Wis. 2d 943, 440 N.W.2d 364 (1989). Subsection (8) is in- tended to clarify procedure following a remand and to eliminate an additional notice of appeal or cross-appeal. The obligations of a person filing a statement of objec-

808.075 APPEALS AND WRITS OF ERROR

tions are the same as those of a cross-appellant. [Re Order No. 00-02 effective July 1, motion that was denied by the trial court. State v. Courtney E., 184 Wis. 2d 592, 516 2001] N.W.2d 422 (1994). An indigent in a civil case is entitled to waiver of transcript fees on appeal if the In the absence of a remand order in the mandate line or some other clear directive trial judge finds that the indigent has arguable reason to believe that the indigent is from the appellate court ultimately deciding the appeal, a trial court whose judg- entitled to redress on appeal. State ex rel. Girouard v. Circuit Court, 155 Wis. 2d ment or final order has been affirmed by the appellate court on the merits has no au- 148, 454 N.W.2d 792 (1990). thority to reopen the case for an amended complaint. Tietsworth v. Harley-David- Under sub. (1) and s. 808.07 (1), a circuit court has authority to confirm a sher- son, Inc., 2007 WI 97, 303 Wis. 2d 94, 735 N.W.2d 418, 04-2655. iff’s sale even though an appeal of the judgment of foreclosure and sale is pending. Unless the supreme court explicitly states otherwise, a court of appeals opinion Community National Bank v. O’Neill, 157 Wis. 2d 244, 458 N.W.2d 385 (Ct. App. overruled by the supreme court no longer retains any precedential value. Blum v. 1st 1990). Auto & Casualty Insurance Co., 2010 WI 78, 326 Wis. 2d 729, 786 N.W.2d 78, 08- When the court of appeals remands an appeal to the trial court for a Girouard, 1324. 155 Wis. 2d 148 (1990), determination, the court of appeals has jurisdiction to re- view the trial court decision without need for filing a second notice of appeal. State 808.10 Review by the supreme court. (1) PETITION FOR v. Jacobus, 167 Wis. 2d 230, 481 N.W.2d 642 (Ct. App. 1992). REVIEW; TIME LIMIT. A decision of the court of appeals is review- 808.08 Further proceedings in trial court. When the able by the supreme court only upon a petition for review granted record and remittitur are received in the trial court: by the supreme court. Except as provided in sub. (2) and ss. 809.32 (5) and 809.62 (1m), the petition for review shall be filed (1) If the trial judge is ordered to take specific action, the in the supreme court within 30 days of the date of the decision of judge shall do so as soon as possible. the court of appeals. (2) If a new trial is ordered, the trial court, upon receipt of the (2) TOLLING PENDING COURT OF APPEALS RECONSIDERA- remitted record, shall place the matter on the trial calendar. TION. If a motion for reconsideration is filed in the court of ap- (3) If action or proceedings other than those mentioned in peals under s. 809.24 (1) within 20 days after the date of a deci- sub. (1) or (2) is ordered, any party may, within one year after re- sion of the court of appeals, the 30-day time period to file the pe- ceipt of the remitted record by the clerk of the trial court, make tition for review starts on the date the court of appeals determines appropriate motion for further proceedings. If further proceed- the motion for reconsideration by filing an order denying the mo- ings are not so initiated, the action shall be dismissed except that tion for reconsideration or an amended decision. an extension of the one-year period may be granted, on notice, by History: 1977 c. 187; 1979 c. 192; 2009 a. 25. the trial court, if the order for extension is entered during the one- Judicial Council Note, 1979: This section is amended to more properly describe year period. the function of the supreme court in reviewing decisions of the court of appeals. The supreme court decides whether to accept jurisdiction of a case from the court of History: 1977 c. 187. appeals after a petition to review, not a petition to appeal, is filed with the supreme “Further proceedings” under sub. (3) and s. 801.58 (7) have the same definition. court. See s. 809.62. [Bill 396-S] State ex rel. Ondrasek v. Circuit Court, 133 Wis. 2d 177, 394 N.W.2d 912 (Ct. App. “Decision” under this section is the final decision disposing of the case. K.R. v. 1986). Rock County Department of Social Services, 85 Wis. 2d 444, 270 N.W.2d 581 A “specific action” under sub. (1) is one that requires no exercise of discretion by (1978). the trial court. “Further proceedings” under sub. (3) are those requiring the exercise If a petition is not received by the clerk of the supreme court within 30 days, the of discretion by the trial court. State ex rel. J.H. Findorff & Son, Inc. v. Circuit court loses subject matter jurisdiction. The objection is not subject to waiver and Court, 2000 WI 30, 233 Wis. 2d 428, 608 N.W.2d 679, 97-3452. will be raised on the court’s own motion. First Wisconsin National Bank of Madi- In the absence of a remand order in the mandate line or some other clear directive son v. Nicholaou, 87 Wis. 2d 360, 274 N.W.2d 704 (1979). from the appellate court ultimately deciding the appeal, a trial court whose judg- The untimely service of a petition filed under this section does not affect jurisdic- ment or final order has been affirmed by the appellate court on the merits has no au- tion, but the opposing party may move to dismiss under s. 809.83 (2). State v. thority to reopen the case for an amended complaint. Tietsworth v. Harley-David- Rhone, 94 Wis. 2d 682, 288 N.W.2d 862 (1980). son, Inc., 2007 WI 97, 303 Wis. 2d 94, 735 N.W.2d 418, 04-2655. The 30-day deadline for receipt of a petition for review is tolled on the date that a pro se prisoner delivers a correctly addressed petition to the proper prison authori- 808.09 Reversal, affirmance or modification of judg- ties for mailing. State ex rel. Nichols v. Litscher, 2001 WI 119, 247 Wis. 2d 1013, ment. Upon an appeal from a judgment or order an appellate 635 N.W.2d 292, 00-0853. See also State ex rel. Brown v. Bradley, 2003 WI 14, 259 Wis. 2d 630, 658 N.W.2d 427, 01-3324. court may reverse, affirm or modify the judgment or order as to Unless the supreme court explicitly states otherwise, a court of appeals opinion any or all of the parties; may order a new trial; and, if the appeal overruled by the supreme court no longer retains any precedential value. Blum v. 1st Auto & Casualty Insurance Co., 2010 WI 78, 326 Wis. 2d 729, 786 N.W.2d 78, 08- is from a part of a judgment or order, may reverse, affirm or mod- 1324. ify as to the part appealed from. In all cases an appellate court Petitions for Review by the Wisconsin Supreme Court. Karch. 1979 WLR 1176. shall remit its judgment or decision to the court below and there- upon the court below shall proceed in accordance with the judg- 808.11 Printing specifications. Briefs and appendices in ment or decision. cases before the supreme court shall be printed, typed, duplicated History: 1977 c. 187. or reproduced clearly on paper of permanent quality, and in con- The court of appeals may not direct a circuit court to enter a judgment of convic- formity with such rules as the court may prescribe with regard to tion of a lesser included offense when a jury verdict of guilty on a greater offense is organization, binding, color of print, and size of print, paper and reversed for insufficiency of evidence and the jury was not instructed on the lesser included offense. State v. Myers, 158 Wis. 2d 356, 461 N.W.2d 777 (1990). margin. The court of appeals has authority to grant a summary judgment on appeal of a History: 1975 c. 160; 1977 c. 187 s. 83; Stats. 1977 s. 808.11.