Wis. Stat. § 809.10

Current through Acts 2023-2024, ch. 272
Section 809.10 - Rule (Initiating the appeal)
(1) NOTICE OF APPEAL.
(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).
(b)Content. The notice of appeal shall include all of the following:
1. The circuit court case name and number.
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.
3. A statement of whether the appeal arises in one of the types of cases specified in s. 752.31(2).
4. A statement of whether the appeal is to be given preference in the circuit court or court of appeals pursuant to statute.
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.
6. If counsel is appointed under ch. 977, a copy of the order appointing counsel.
(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, 809.32, 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.
(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.
(f)Error in content not jurisdictional defect. An inconsequential error in the content of the notice of appeal is not a jurisdictional defect.
(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.
(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.
(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.
(2) MULTIPLE APPEALS.
(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.
(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.
(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.
(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.

Wis. Stat. § 809.10

Amended by Sup. Ct. Order 20-07 (2021), eff. 7/1/2021.
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.

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. In Matter of Trust Estate of Schaefer, 91 Wis. 2d 360, 283 N.W.2d 410 (Ct. App. 1979). 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). 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). 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). 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). 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. Milwaukee, 160 Wis. 2d 529, 466 N.W.2d 670 (Ct. App. 1991). 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, 561 N.W.2d 718 (1997), 95-1946. 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. Holz v. Busy Bees Contracting, Inc., 223 Wis. 2d 598, 589 N.W.2d 633 (Ct. App. 1998), 98-1076. 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. Section 753.016(1) and (2) provide 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. Kelley v. State, 2003 WI App 81, 261 Wis. 2d 803, 661 N.W.2d 854, 02-1495. 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 v. Galaxy Gaming and Racing, 2003 WI App 190, 267 Wis. 2d 233, 670 N.W.2d 74, 02-0359. Affirmed on other grounds. 2004 WI 92, 273 Wis. 2d 577, 682 N.W.2d 839, 02-0359. 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 121, 274 Wis. 2d 804, 683 N.W.2d 804, 03-2309. 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. Dixon v. Hnilicka Company, Inc., 2011 WI App 46, 332 Wis. 2d 357, 798 N.W.2d 264, 09-1953. 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. Mechanics of Making an Appeal in the Court of Appeals. Felsenthal. WBB Oct. 1981. Appellate review: Choosing and shaping the proper standard. Leavell. WBB Apr. 1987. Changing standards of appellate review. Leavell. WBB May 1987.