Section 805.17. Trial to the court.

 

(1)   Motion at close of plaintiff's evidence. After the plaintiff, in an action tried by the court without a jury, has completed the presentation of his or her evidence, the defendant, without waiving his or her right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. The court as trier of the facts may then determine them and render judgment against the plaintiff on that ground or may decline to render any judgment until the close of all the evidence. If the court renders judgment on the merits against the plaintiff, the court shall make findings as provided in sub. (2) . Unless the court in its order for dismissal otherwise specifies, a dismissal under this section operates as an adjudication upon the merits.

(2)   Effect. In all actions tried upon the facts without a jury or with an advisory jury, the court shall find the ultimate facts and state separately its conclusions of law thereon. The court shall either file its findings and conclusions prior to or concurrent with rendering judgment, state them orally on the record following the close of evidence or set them forth in an opinion or memorandum of decision filed by the court. In granting or refusing interlocutory injunctions the court shall similarly set forth the findings of fact and conclusions of law which constitute the grounds of its action. Requests for findings are not necessary for purposes of review. Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses. The findings of a referee may be adopted in whole or part as the findings of the court. If an opinion or memorandum of decision is filed, it will be sufficient if the findings of ultimate fact and conclusions of law appear therein. If the court directs a party to submit proposed findings and conclusions, the party shall serve the proposed findings and conclusions on all other parties not later than the time of submission to the court. The findings and conclusions or memorandum of decision shall be made as soon as practicable and in no event more than 60 days after the cause has been submitted in final form.

(3)   Reconsideration motions. Upon its own motion or the motion of a party made not later than 20 days after entry of judgment, the court may amend its findings or conclusions or make additional findings or conclusions and may amend the judgment accordingly. The motion may be made with a motion for a new trial. If the court amends the judgment, the time for initiating an appeal commences upon entry of the amended judgment. If the court denies a motion filed under this subsection, the time for initiating an appeal from the judgment commences when the court denies the motion on the record or when an order denying the motion is entered, whichever occurs first. If within 90 days after entry of judgment the court does not decide a motion filed under this subsection on the record or the judge, or the clerk at the judge's written direction, does not sign an order denying the motion, the motion is considered denied and the time for initiating an appeal from the judgment commences 90 days after entry of judgment.

(4)   Appeal. In actions tried by the court without a jury, the question of the sufficiency of the evidence to support the findings may be raised on appeal whether or not the party raising the question has objected in the trial court to such findings or moved for new trial.

Sup. Ct. Order, 67 Wis. 2d 585, 712 (1975); Sup. Ct. Order, 73 Wis. 2d xxxi (1976); Sup. Ct. Order, 107 Wis. 2d xi (1982); Sup Ct. Order, 130 Wis. 2d xi (1986); Sup. Ct. Order, 160 Wis. 2d xiii (1991); 1993 a. 486 . Judicial Council Committee's Note, 1976: Sub. (1) is based on the language in Federal Rule 41b, and governs how a court as the trier of the facts handles a motion by a defendant for dismissal after the plaintiff has completed the presentation of his evidence. This adoption of the Federal Rule was the approach taken by the Wisconsin Supreme Court in the case of Household Utilities, Inc. v. Andrews Co., 71 Wis. 2nd 17 (1976). [Re Order effective Jan. 1, 1977] Judicial Council Note, 1982: Sub. (2) has been amended to allow the filing of the findings and conclusions concurrent with the rendering of the judgment. The changes are intended to eliminate doubts as to the propriety of combining the findings, conclusions and judgment in a single document, simplifying paperwork, minimizing storage space requirements and reducing the likelihood of errors. [Re Order effective July 1, 1982] Judicial Council Note, 1986: Sub. (2) is amended to permit the court to state the findings of fact and conclusions of law on the record in open court, in lieu of filing them. The amendment conforms to the practice authorized under Rule 52 (a), F.R.C.P. [Re Order eff. 7-1-86] Judicial Council Note, 1991. This section permits motions for reconsideration to be made within 20 days after entry of judgment in actions tried to the court. Such motions are deemed denied if not decided within 90 days after entry of judgment. [Re Order eff. 7-1-91] Section 805.17 (3) does not limit the trial court's discretion to grant relief from an order or judgment under s. 806.07 (1) (h) when reasons justifying relief are apparent to the court. Matter of Estate of Smith, 82 Wis. 2d 667 , 264 N.W.2d 239 (1978). Failure to bring a motion under sub. (3) to correct a manifest error constitutes a waiver of the right to have an issue considered on appeal. Schinner v. Schinner, 143 Wis. 2d 81 , 420 N.W.2d 381 (Ct. App. 1988). If a motion is filed under sub. (3), the 45-day time for appeal under s. 808.04 (1) applies beginning upon disposal of the motion. Salzman v. DNR, 168 Wis. 2d 523 , 484 N.W.2d 337 (Ct. App. 1992). 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 an issue of fact 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). Sub. (3) modifies the deadline for filing appeals only on reconsideration motions after trials to the court. Continental Casualty Co. v. Milwaukee Metropolitan Sewerage District 175 Wis. 2d 527 , 499 N.W.2d 282 (Ct. App. 1993). Reconsideration assumes a question that has been previously considered. If a party has not appeared and made arguments, the court has not considered the party's arguments in the first instance and reconsideration is improper. Matter of Estate of O'Neill, 186 Wis. 2d 229 , 519 N.W.2d 750 (Ct. App. 1994). Although a formal order was subsequently signed, the trial court's letter to the parties informing them that a motion for reconsideration was denied was a denial “on the record" under sub. (3), and the time for filing an appeal commenced on the date of the letter. Orth v. Ameritrade, Inc. 187 Wis. 2d 162 , 522 N.W.2d 30 (Ct. App. 1994). A court's final written findings of fact and conclusions of law take precedence over an earlier written memorandum or an oral finding not repeated in the final order. When there is a conflict between an ambiguous oral pronouncement and the written judgment, it is proper to look to the written judgment to ascertain the court's intent. Jackson v. Gray, 212 Wis. 2d 436 , 569 N.W.2d 467 (Ct. App. 1997), 95-3168 . There is no condition precedent under sub. (3) for reconsideration on the court's own motion except that the court must act within 20 days of its original decision. Therefore there is no requirement that the reason for reconsideration must have been a subject of the original hearing. Village of Thiensville v. Olsen, 223 Wis. 2d 256 , 588 N.W.2d 394 (Ct. App. 1998), 98-2055 . Sub. (3) does not apply to reconsiderations of summary or default judgments. Teff v. Unity Health Plans Insurance Corporation, 2003 WI App 115 , 265 Wis. 2d 703 , 666 N.W.2d 38 , 02-1319 . A tenant in an eviction may move for reconsideration of the eviction judgment under sub. (3), but must take an appeal from the judgment within the time for appeal in s. 799.445. The time for filing an appeal under sub. (3) does not apply. Highland Manor Associates v. Bast, 2003 WI 152 , 268 Wis. 2d 1 , 672 N.W.2d 709 , 02-2799 . To prevail on a motion for reconsideration, the movant must present either newly discovered evidence or establish a manifest error of law or fact. A party may not use a motion for reconsideration to introduce new evidence that could have been introduced at the original summary judgment phase. Koepsell's Olde Popcorn Wagons, Inc. v. Koepsell's Festival Popcorn Wagons, Ltd. 2004 WI App 129 , 275 Wis. 2d 397 , 685 N.W.2d 397 , 03-0773 When evidence in the record consists of disputed testimony and a video recording, the court of appeals will apply the clearly erroneous standard of review when reviewing the trial court's findings of fact based on that recording. State v. Walli, 2011 WI App 86 , 334 Wis. 2d 402 , 799 N.W.2d 898 , 10-1256 . What You Need to Know: New Electronic Discovery Rules. Sankovitz, Grenig & Gleisner. Wis. Law. July 2010.