Section 801.15. Time.

 

(1)  

(a) In this subsection, “holiday" means any day that is a holiday provided in s. 230.35 (4) (a) or a statewide legal holiday provided in s. 995.20 or both, and a full day on Good Friday.

(b) Notwithstanding ss. 985.09 and 990.001 (4) , in computing any period of time prescribed or allowed by chs. 801 to 847 , by any other statute governing actions and special proceedings, or by order of court, the day of the act, event or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a day the clerk of courts office is closed. When the period of time prescribed or allowed is less than 11 days, Saturdays, Sundays and holidays shall be excluded in the computation.

(2)  

(a) When an act is required to be done at or within a specified time, the court may order the period enlarged but only on motion for cause shown and upon just terms. The 90 day period under s. 801.02 may not be enlarged. If the motion is made after the expiration of the specified time, it shall not be granted unless the court finds that the failure to act was the result of excusable neglect. The order of enlargement shall recite by its terms or by reference to an affidavit in the record the grounds for granting the motion.

(b) The time within which a motion challenging the sufficiency of the evidence or for a new trial must be decided shall not be enlarged except for good cause. The order of extension must be made prior to the expiration of the initial decision period.

(c) The time for initiating an appeal under s. 808.04 , for deciding motions after verdict under s. 805.16 (3) , and for making motions for reconsideration under s. 805.17 (3) or for relief from judgment or order under s. 48.46 (2) or 806.07 may not be enlarged.

(4)  A written motion, other than one which may be heard ex parte, and notice of the hearing thereof shall be served not later than 5 days before the time specified for the hearing, unless a different period is fixed by statute or by order of the court. Such an order may for cause shown be made on ex parte motion. When a motion is supported by affidavit, the affidavit shall be served with the motion; and opposing affidavits may be served not later than one day before the hearing, unless the court permits them to be served at some other time. All written motions shall be heard on notice unless a statute or rule permits the motion to be heard ex parte.

(5)  Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon the party:

(a) If the notice or paper is served by mail, 3 days shall be added to the prescribed period.

(b) If the notice or paper is served by facsimile transmission or by the electronic filing system under s. 801.18 and such transmission is completed between 5 p.m. and midnight, 1 day shall be added to the prescribed period.

Sup. Ct. Order, 67 Wis. 2d 585, 610 (1975); 1975 c. 218 ; Sup. Ct. Order, 73 Wis. 2d xxxi (1976); 1977 c. 187 s. 135 ; 1977 c. 449 ; 1979 c. 89 ; 1983 a. 192 s. 304 ; 1985 a. 145 ; Sup Ct. Order, 130 Wis. 2d xi (1986); 1985 a. 332 ; Sup. Ct. Order, 136 Wis. 2d xxv (1987); Sup. Ct. Order, 146 Wis. 2d xxxiii (1988); Sup. Ct. Order, 160 Wis. 2d xiv (1991); Sup. Ct. Order, 161 Wis. 2d xvii (1991); Sup. Ct. Order No. 94-05 , 183 Wis. 2d xix; 1997 a. 187 ; 2005 a. 155 ; Sup. Ct. Order No. 14-03 , 2016 WI 29, filed 4-28-16, eff. 7-1-16. Cross-reference: See s. 32.05 (4) for exception to provision for added time in case of mailing. Law Revision Committee Note, 1985: [Sub. (1)] Under the current statute, the time period specified by law or by a court relating to a court action or special proceeding is extended if the last day of the time period falls on a Saturday, Sunday or legal holiday. This amendment adds Good Friday, Christmas eve and New Year's eve. The afternoon of Good Friday and the full day on December 24 and 31 are holidays for state employees, and the amendment will permit clerks to close their offices at these times. [85 Act 145] Judicial Council Committee's Note, 1976: The procedure under s. 801.15 (2) (a) for enlarging the period in which an act is required to be done under the rules of civil procedure cannot be used to enlarge the 60-day period under s. 801.02. See also s. 802.06 (2) (e) and (8). Pars. (2) (b) and (c) are independent provisions. The enlargement of time “for good cause" provision in par. (b) does not apply to the time for appeal under s. 817.01, for motion after verdict under s. 805.16, and for relief from judgment under s. 806.07 as such a result would substantially impair the finality of judgments. The word “extended" is replaced by the word “enlarged" in par. (c) to comply with similar language in pars. (2) (a) and (b). [Re Order effective Jan. 1, 1977] Judicial Council Note, 1986: Sub. (1) is amended by extending from 7 to 11 days the periods from which Saturdays, Sundays and legal holidays are excluded. The change conforms to that made in Rule 6 (a), F.R.C.P. in 1985. [Re Order eff. 7-1-86] Judicial Council Note, 1986: Sub. (2) (c) is amended to clarify that, while the time for deciding motions after verdict may not be enlarged, the time for filing and hearing such motions may be enlarged by the court under revised s. 805.16 (1) and (2). [Re Order eff. 7-1-87] Judicial Council Note, 1991: The amendment to sub. (2) (c) prohibits the court form extending the time for making reconsideration motions under s. 805.17 (3). [Re Order eff. 7-1-91] Judicial Council Note, 1991: Sub. (5) (b) is created to allow one extra day to respond to papers served by facsimile transmission after normal business hours. Additional response time may be available under the computation rules of sub. (1) (b) if papers are so served on weekends or holidays. [Re Order eff. 7-1-91] Judicial Council Note, 1994: Subsection (1) (b) is amended by excluding the last day of a time period from the computation if the clerk of courts office is closed all day. A court has no authority to enlarge the time in which to file a complaint. Pulchinski v. Strnad, 88 Wis. 2d 423 , 276 N.W.2d 781 (1979). Error based on late service and filing of an affidavit was waived by the failure to object at a hearing. In re Spring Valley Meats, Inc. 94 Wis. 2d 600 , 288 N.W.2d 852 (1980). Notice of entry of judgment was “given" under s. 806.06 (5) when it was mailed. Sub. (5) was inapplicable. Bruns v. Muniz, 97 Wis. 2d 742 , 295 N.W.2d 112 (Ct. App. 1980). The trial court abused its discretion in enlarging the time to file an answer when the answer was served 9 days after the deadline. Hedtcke v. Sentry Ins. Co. 109 Wis. 2d 461 , 326 N.W.2d 727 (1982). Time computations under ss. 32.05 (10) (a) and 32.06 (10) are controlled by s. 801.15 (1), not s. 990.001 (4). In Matter of Petition of Electric Power Co. 110 Wis. 2d 649 , 329 N.W.2d 186 (1983). Service of an answer was timely under the terms of a courtesy agreement. Oostburg Bank v. United Savings, 130 Wis. 2d 4 , 386 N.W.2d 53 (1986). Time periods under s. 805.16 may not be enlarged by showing excusable neglect under s. 801.15 (2) (a). Brookhouse v. State Farm Mutual Insurance Co. 130 Wis. 2d 166 , 387 N.W.2d 82 (Ct. App. 1986). The trial court lost jurisdiction to decide motions after verdict by consecutively extending the time for its decision under sub. (2) (b). Ford Motor Co. v. Lyons, 137 Wis. 2d 397 , 405 N.W.2d 354 (Ct. App. 1987). Because a courtesy agreement was made after default, the court did not abuse its discretion by insisting on compliance with sub. (2) (a). Clark County v. B.T.U. Structures, 144 Wis. 2d 11 , 422 N.W.2d 910 (Ct. App. 1988). The trial court had discretion to allow a jury trial when fees under s. 814.61 (4) were not timely paid. Chitwood v. A. O. Smith Harvestore, 170 Wis. 2d 622 , 489 N.W.2d 697 (Ct. App. 1992). While clerical error is not always excusable, it is not as a matter of law inexcusable neglect. Sentry Insurance v. Royal Insurance Co. 196 Wis. 2d 907 , 539 N.W.2d 911 (Ct. App. 1995), 94-3428 . Trial courts have discretion to shorten the 5-day notice requirement for motions. Schopper v. Gehring, 210 Wis. 2d 208 , 565 N.W.2d 187 (Ct. App. 1997), 96-2782 . Sub. (2) (a) is applicable to excusable neglect by a trial judge. State v. Elliot, 203 Wis. 2d 95 , 551 N.W.2d 850 (Ct. App. 1996), 96-0012 . Excusable neglect is conduct that might have been the act of a reasonably prudent person under the same circumstances. A court must look beyond the cause of the neglect to the interests of justice, considering both the need to afford litigants a day in court and to ensure prompt adjudication. Whether the dilatory party acted in good faith, whether the opposing party was prejudiced, and whether prompt remedial action took place are factors to consider. An attorney who relied on an oral courtesy agreement whose terms were not disputed and promptly filed for an extension acted with excusable neglect. Rutan v. Miller, 213 Wis. 2d 94 , 570 N.W.2d 54 (Ct. App. 1997), 97-0547 . Under sub. (1) (b) the last day is included in determining time periods unless it is “a day the clerk of courts office is closed." Whether or not the day is a “holiday" under sub. (1) (a) is not relevant. Klingbeil v. Perschke, 228 Wis. 2d 421 , 596 N.W.2d 488 (Ct. App. 1999), 99-0488 . A courtesy extension agreement is not required to be in writing, but a court may consider the lack of documentation in making a determination as to whether an agreement existed. Connor v. Connor, 2001 WI 49 , 243 Wis. 2d 279 , 627 N.W.2d 182 , 99-0157 . The trial court erroneously exercised its discretion by entering default judgment without hearing offered testimony on the question of whether an oral courtesy agreement existed and, if so, what the agreement provided. Johnson Bank v. Brandon Apparel Group, Inc. 2001 WI App 159 , 246 Wis. 2d 828 , 632 N.W.2d 107 . The trial court court was not required to find excusable neglect for failing to file a timely answer due to a process server's failure to endorse and date the summons and complaint as required under s. 801.10 (2) when the failure to answer in a timely manner amounted to nothing more than carelessness and inattentiveness on the part of the parties involved. While prompt remedial action after the expiration of the statutory time limit is a material factor bearing on whether relief should be granted, it does not eliminate the requirement that a dilatory party demonstrate excusable neglect for its initial failure to meet the statutory deadline. Williams Corner Investors, LLC v. Areawide Cellular, LLC, 2004 WI App 27 , 269 Wis. 2d 682 , 676 N.W.2d 168 , 03-0824 . In the absence of excusable neglect, the court is not obligated to address the interests of justice. Estate of Otto v. Physicians Insurance Company of Wisconsin, Inc. 2007 WI App 192 , 305 Wis. 2d 198 , 739 N.W.2d 599 , 06-1566 . Affirmed on other grounds. 2008 WI 78 , 311 Wis. 2d 84 , 751 N.W.2d 805 , 06-1566 . The excusable neglect standard set forth in sub. (2) (a) does not apply to untimely motions to enlarge scheduling order deadlines. Rather, s. 802.10 provides the applicable standards and procedures courts apply to such motions. Parker v. Wisconsin Patients Compensation Fund, 2009 WI App 42 , 317 Wis. 2d 460 , 767 N.W.2d 272 , 07-1542 . Sub. (1) is not a proper vehicle for a criminal defendant to seek a new trial in the interest of justice. During the appellate process under ss. 809.30 and 974.02, defendants may also appeal to the discretionary power of the court of appeals to order a new trial in the interest of justice under s. 752.35 and to the supreme court in an appeal under s. 751.06. State v. Henley, 2010 WI 97 , 328 Wis. 2d 544 , 787 N.W.2d 350 , 08-0697 . Precedent has set an extremely high bar to reverse excusable neglect determinations. A court cannot reject out-of-hand the possibility that a packet was actually “lost in the mail," although courts should be skeptical of glib claims that attribute fault to the United States Postal Service. Courts should carefully scrutinize what steps an organization has taken to avoid such mishaps, how quickly the organization responds when it discovers its delinquency, and whether its delay has caused prejudice to the plaintiffs. Casper v. American International South Insurance Company, 2011 WI 81 , 336 Wis. 2d 267 , 800 N.W.2d 880 , 06-1229 . Sub. (1) (b) is not applicable to an appeal before an administrative agency. Baker v. Department of Health Services, 2012 WI App 71 , 2012 WI App 71 , 342 Wis. 2d 174 , 816 N.W.2d 337 , 11-1529 . Avoiding and obtaining relief from default judgments. Parlee, WBB April, 1985.