2011 Wisconsin Code
Chapter 802. Civil procedure--pleadings, motions and pretrial practice.
802.08 Summary judgment.

802.08

802.08 Summary judgment.

802.08(1)

(1) Availability. A party may, within 8 months of the filing of a summons and complaint or within the time set in a scheduling order under s. 802.10, move for summary judgment on any claim, counterclaim, cross claim, or 3rd-party claim which is asserted by or against the party. Amendment of pleadings is allowed as in cases where objection or defense is made by motion to dismiss.

802.08(2)

(2) Motion. Unless earlier times are specified in the scheduling order, the motion shall be served at least 20 days before the time fixed for the hearing and the adverse party shall serve opposing affidavits, if any, at least 5 days before the time fixed for the hearing. Prior to a hearing on the motion, any party who was prohibited under s. 802.02 (1m) from specifying the amount of money sought in the demand for judgment shall specify that amount to the court and to the other parties. The judgment sought shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages.

802.08(3)

(3) Supporting papers. Supporting and opposing affidavits shall be made on personal knowledge and shall set forth such evidentiary facts as would be admissible in evidence. Copies of all papers or parts thereof referred to in an affidavit shall be attached thereto and served therewith, if not already of record. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. When a motion for summary judgment is made and supported as provided in this section, an adverse party may not rest upon the mere allegations or denials of the pleadings but the adverse party's response, by affidavits or as otherwise provided in this section, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against such party.

802.08(4)

(4) When affidavits unavailable. Should it appear from the affidavits of a party opposing the motion that the party cannot for reasons stated present by affidavit facts essential to justify the party's opposition, the court may refuse the motion for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.

802.08(5)

(5) Affidavits made in bad faith. Should it appear to the satisfaction of the court at any time that any of the affidavits presented pursuant to this section is presented in bad faith or solely for the purpose of delay, the court shall forthwith order the party employing them to pay to the other party the amount of the reasonable expenses which the filing of the affidavits caused the other party to incur, including reasonable attorney fees.

802.08(6)

(6) Judgment for opponent. If it shall appear to the court that the party against whom a motion for summary judgment is asserted is entitled to a summary judgment, the summary judgment may be awarded to such party even though the party has not moved therefor.

802.08(7)

(7) Telephone hearings. Oral argument permitted on motions under this section may be heard as prescribed in s. 807.13 (1).

802.08 - ANNOT.

History: Sup. Ct. Order, 67 Wis. 2d 585, 630 (1975); 1975 c. 218; Sup. Ct. Order, 82 Wis. 2d ix; Sup. Ct. Order, 141 Wis. 2d xix; 1987 a. 256; Sup. Ct. Order, 168 Wis. 2d xxii; 1993 a. 490; 1997 a. 254; 2005 a. 253; 2007 a. 97.

802.08 - ANNOT.

Judicial Council Committee's Note, 1977: Sub. (1) is revised to allow a party at any time within 8 months after the summons and complaint are filed or the time established in a scheduling order under s. 802.10 to move for a summary judgment. The 8-month time period has been created as the old procedure requiring a party to move for summary judgment not later than the time provided under s. 802.10 can no longer apply in most cases as the use of such a scheduling order is now completely discretionary with the trial judge. The 8-month time period is subject to enlargement under s. 801.15 (2) (a). [Re Order effective July 1, 1978]

802.08 - ANNOT.

Judicial Council Note, 1988: Sub. (7) [created] allows oral arguments permitted on motions for summary judgment to be heard by telephone conference. [Re Order effective Jan. 1, 1988]

802.08 - ANNOT.

Judicial Council Note, 1992: The prior sub. (2), allowing service of affidavits opposing summary judgment up to the date of hearing, afforded such minimal notice to the court and moving party that a plethora of local court rules resulted. Community Newspapers, Inc. v. West Allis, 158 Wis. 2d 28, 461 N.W.2d 785 (Ct. App. 1990). Requiring such affidavits to be served at least 5 days before the hearing is intended to preclude such local rules and promote uniformity of practice. Courts may require earlier filing by scheduling orders, however. [Re Order effective July 1, 1992]

802.08 - ANNOT.

When the plaintiff had signed a release, and when another illness subsequently developed, whether the plaintiff consciously intended to disregard the possibility that a known condition could become aggravated was a question of fact not to be determined on summary judgment. Krezinski v. Hay, 77 Wis. 2d 569, 253 N.W.2d 522 (1977).

802.08 - ANNOT.

Summary judgment procedure is not authorized in proceedings for judicial review under ch. 227. Wisconsin Environmental Decade v. Public Service Commission, 79 Wis. 2d 161, 255 N.W.2d 917 (1977).

802.08 - ANNOT.

When an insurance policy unambiguously excluded coverage relating to warranties, a factual question whether implied warranties were made was immaterial and the trial court abused its discretion in denying the insurer's summary judgment motion. Jones v. Sears Roebuck & Co. 80 Wis. 2d 321, 259 N.W.2d 70 (1977).

802.08 - ANNOT.

Use of the mandatory language in sub. (2) that "judgment shall be rendered" means that trial courts do not have wide latitude in deciding summary judgment motions and that appeals of decisions to grant or deny summary judgment be given exacting scrutiny. Wright v. Hasley, 86 Wis. 2d 572, 273 N.W.2d 319 (1979).

802.08 - ANNOT.

When a stipulation to the facts of a case did not satisfy the formal requirements of s. 807.05, summary judgment was improper. Wilharms v. Wilharms, 93 Wis. 2d 671, 287 N.W.2d 779 (1980).

802.08 - ANNOT.

The existence of a new or difficult issue of law does not make summary judgment inappropriate. Maynard v. Port Publications, Inc. 98 Wis. 2d 555, 297 N.W.2d 500 (1980).

802.08 - ANNOT.

A conviction for injury by conduct regardless of life did not establish that the injury was intentional or expected and did not entitle the insurer to summary judgment on a policy exclusion issue. Poston v. U.S. Fidelity & Guarantee Co. 107 Wis. 2d 215, 320 N.W.2d 9 (Ct. App. 1982).

802.08 - ANNOT.

Summary judgment can be based upon a party's failure to respond to a request for admissions, even if the admissions would be dispositive of the entire case. Bank of Two Rivers v. Zimmer, 112 Wis. 2d 624, 334 N.W.2d 230 (1983).

802.08 - ANNOT.

An appellate court reviews the trial court's decision by applying the same standards and methods as did the trial court. Green Spring Farms v. Kersten, 136 Wis. 2d 304, 401 N.W.2d 816 (1987).

802.08 - ANNOT.

When the only issue before the court requires expert testimony for resolution, the trial court on summary judgment may determine whether the party has made a prima facie showing that it can, in fact, produce favorable testimony. Dean Medical Center v. Frye, 149 Wis. 2d 727, 439 N.W.2d 633 (Ct. App. 1989).

802.08 - ANNOT.

CHIPS proceedings are controlled by the Code of Civil Procedure unless ch. 48 requires a different procedure, and summary judgment is available. Interest of F.Q. 162 Wis. 2d 607, 470 N.W.2d 1 (Ct. App. 1991).

802.08 - ANNOT.

Summary judgment does not apply to cases brought under the criminal code. State v. Hyndman, 170 Wis. 2d 198, 488 N.W.2d 111 (Ct. App. 1992).

802.08 - ANNOT.

Involuntary commitment may not be ordered on summary judgment. Matter of Mental Condition of Shirley J.C. 172 Wis. 2d 371, 493 N.W.2d 382 (Ct. App. 1992).

802.08 - ANNOT.

In a trial to the court, the court may not base its decision on affidavits submitted in support of a summary judgment. Proof offered in support of summary judgment is for determining if an issue of fact exists. When one does, summary judgment proof gives way to trial proof. Berna-Mork v. Jones, 173 Wis. 2d 733, 496 N.W.2d 637 (Ct. App. 1992).

802.08 - ANNOT.

A party's affidavit that contradicted that same party's earlier deposition raised an issue of fact, making summary judgment inappropriate. Wolski v. Wilson, 174 Wis. 2d 533, 497 N.W.2d 794 (Ct. App. 1993).

802.08 - ANNOT.

A 4-step methodology for determining and reviewing a summary judgment motion is stated. The use of trial material to sustain a grant or denial of summary judgment is inconsistent with this methodology. Universal Die & Stampings v. Justus, 174 Wis. 2d 556, 497 N.W.2d 797 (Ct. App. 1993).

802.08 - ANNOT.

When expert testimony is required to establish a party's claim, evidentiary material from an expert is necessary in response to a summary judgment motion. Holsen v. Heritage Mut. Ins. Co. 182 Wis. 2d 457, 513 N.W.2d 690 (Ct. App. 1994).

802.08 - ANNOT.

The court of appeals has authority to grant a summary judgment on appeal of a motion that was denied by the trial court. Interest of Courtney E. 184 Wis. 2d 592, 516 N.W.2d 422 (1994).

802.08 - ANNOT.

Trial courts have the authority to convert a motion to dismiss to a motion for summary judgment when matters outside the pleadings are considered. Schopper v. Gehring, 210 Wis. 2d 208, 565 N.W.2d 187 (Ct. App. 1997), 96-2782.

802.08 - ANNOT.

If a litigant who is not the subject of a motion for summary judgment has reason to dispute facts supporting the motion, the litigant has a duty to appear and object to the motion. If summary judgment is granted, the facts underlying the judgment are binding on all parties to the suit as a matter of issue preclusion. Precision Erecting v. M&I Marshall & Ilsley Bank, 224 Wis. 2d 288, 592 N.W.2d 5 (Ct. App. 1998), 97-3029.

802.08 - ANNOT.

The federal "sham affidavit rule" is adopted. An affidavit that directly contradicts prior deposition testimony generally does not create a genuine issue of fact for trial unless the contradiction is adequately explained. Yahnke v. Carson, 2000 WI 74, 236 Wis. 2d 257, 613 N.W.2d 102, 99-0056.

802.08 - ANNOT.

Generally review of a summary judgment is de novo, but when a summary judgment is based on an equitable right, legal issues are reviewed de novo while equitable relief, which is discretionary with the trial court, will be overturned only if there is an absence of the exercise of discretion. Pietrowski v. Dufrane, 2001 WI App 175, 247 Wis. 2d 232, 634 N.W.2d 109, 00-2143.

802.08 - ANNOT.

Summary judgment procedure is inconsistent with, and unworkable in, ch. 345 forfeiture proceedings. State v. Schneck, 2002 WI App 239, 257 Wis. 2d 704, 652 N.W.2d 434, 02-0513.

802.08 - ANNOT.

Summary judgment is inapplicable in ch. 343 hearings. State v. Baratka, 2002 WI App 288, 258 Wis. 2d 342, 654 N.W.2d 875, 02-0770.

802.08 - ANNOT.

In the absence of an answer to a cross claim and in the absence of any other responsive pleadings, a court may deem facts alleged in the cross claim and submissions filed in connection with a summary judgment motion admitted for purposes of summary judgment. Daughtry v. MPC Systems, Inc. 2004 WI App 70, 272 Wis. 2d 260, 679 N.W.2d 808, 02-2424.

802.08 - ANNOT.

At summary judgment, an affidavit setting forth an expert's opinion is evidence of a factual dispute as long as the opinion is expressed on a matter that is appropriate for expert opinion and the affiant is arguably an expert. Mettler v. Nellis, 2005 WI App 73, 280 Wis. 2d 753, 695 N.W.2d 861, 04-1216.

802.08 - ANNOT.

The plaintiff is normally entitled to an evidentiary hearing when a defendant challenges personal jurisdiction, even if the plaintiff does not demonstrate that an evidentiary hearing is necessary. The burden of going forward with the evidence, as well as the burden of persuasion, on the issue of jurisdiction is on the plaintiff. However, there is no rule that the plaintiff's burden to prove prima facie the facts supporting jurisdiction must be met by affidavit or in any manner prior to the evidentiary hearing. Kavanaugh Restaurant Supply, Inc. v. M.C.M. Stainless Fabricating, Inc. 2006 WI App 236, 297 Wis. 2d 532, 724 N.W.2d 893, 06-0043.

802.08 - ANNOT.

Sub. (2) was amended in 1992 to preclude local rules and to provide a statewide remedy and uniformity of practice. A conflicting local rule was precluded by the uniform rule contained in sub. (2), and the circuit court improperly applied the law when it relied exclusively upon the local rule in refusing to consider a party's submissions. David Christensen Trucking & Excavating, Inc. v. Mehdian, 2006 WI App 254, 297 Wis. 2d 765, 726 N.W.2d 689, 05-2546.

802.08 - ANNOT.

When a trial court enters a scheduling order, it may, in its discretion, deviate from the requirements of sub. (2) for cause shown and upon just terms. There was no exercise of discretion when a standard attachment to a scheduling order recited local court rules at odds with the 5-day rule of sub. (2). With regard to scheduling orders, trial courts that deviate from the statutory time requirements for responding to a motion for summary judgment should explain on the record why that deviation is necessary and appropriate. Hunter v. AES Consultants, Ltd. 2007 WI App 42, 300 Wis. 2d 213, 730 N.W.2d 184, 06-0872.

802.08 - ANNOT.

The circuit court erred when it sua sponte granted summary judgment when it failed to give the notice required by sub. (2). Larry v. Harris, 2008 WI 81, 311 Wis. 2d 326, 752 N.W.2d 279, 05-2935.

802.08 - ANNOT.

Scheduling orders may trump sub. (2). By contrast, local court rules may not trump the deadlines in sub. (2). A scheduling order that attempts to apply a void rule in conflict with sub. (2) by attaching it to the order is invalid. In the absence of some specific dispute, there is no need for the court to explain scheduling decisions on the record. Hefty v. Strickhouser, 2008 WI 96, 312 Wis. 2d 530, 752 N.W.2d 820, 06-1094.

802.08 - ANNOT.

Findings of fact are determinations by a court from the evidence of a case concerning the facts asserted by one party and denied by another. Summary judgment is only granted when there is no genuine issue as to any material fact, where facts are not being asserted by one party and denied by the other. Therefore, formal findings of fact are not part of the summary judgment calculus. Camacho v. Trimble Irrevocable Trust, 2008 WI App 112, 313 Wis. 2d 272, 756 N.W.2d 596, 07-1472.

802.08 - ANNOT.

Section 802.06 (2) (b) serves as an exception to the summary judgment procedure laid out in s. 802.08. Section 802.06 (2) (b) allows the circuit court to convert a defendant's motion to dismiss for failure to state a claim into a summary judgment motion when the defendant has not filed an answer even though s. 802.08 requires that the pleadings be complete before a court can review a summary judgment motion. Alliance Laundry Systems LLC v. Stroh Die Casting Co., Inc. 2008 WI App 180, 315 Wis. 2d 143, 763 N.W.2d 167, 07-2857.