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Reconsideration Case Analysis

Although the decision affirms the court of appeals’ decision, it nevertheless changes the current law. Under the court of appeals’ decision, motions for reconsideration were not permitted at all; under this decision, they are permitted, but do not affect the time for filing an appeal.

It should also be noted that, as did the court of appeals, the Supreme Court declined to comment on the effect of its decision on sec. 799.28, which governs motions for a new trial in small claims court.

Subsection (1) of that statute provides, “A motion for a new trial must be made and heard within 20 days after the verdict is rendered, unless the court extends the time as provided in sec. 801.15(2)(b). If the motion is not decided within 10 days of the date of hearing, it shall be deemed denied. The entry of judgment by the court without deciding a pending motion for a new trial shall be deemed a denial of the motion.”

Subsection (2) provides, “A motion to set aside a verdict or to open up a judgment and for a new trial founded upon newly discovered evidence may be heard upon affidavits and the proceedings in the action. Such a motion may be made at any time within one year from the verdict or finding. …”

Unlike the statute governing reconsideration, which could extend the time for filing an appeal up to 110 days, subsec. (1) could only extend it 30 days, partially eliminating the concern over excessive delay that was present in the case at bar.

Nevertheless, it seems reasonable to conclude that any delay is contrary to legislative intent and expect that the same rule should apply — motions for new trial are permissible, but do not affect the time for appealing the original judgment.

Subsection (2), however, is arguably inapposite to eviction actions. People who are evicted don’t move for new trials a year later, based on newly discovered evidence, expecting to return to their former residence.

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Reconsideration motion does
not extend appeal

Nevertheless, eviction actions usually involve a monetary judgment, as well, and public policy would support that aspect of a judgment being subject to motion for a new trial.

The court also declined to discuss the applicability of Ver Hagen v. Gibbons, 55 Wis.2d 21, 197 N.W.2d 752 (1972), which holds that a motion for reconsideration does not toll the time to file a notice of appeal unless it raises new issues.

The opinion in the case at bar does not state whether the motion raised new issues or not — which is usually the primary issue when a party challenges the timeliness of an appeal involving such a motion.

However, to protect the client’s interest, if representing a tenant in an eviction action, and the motion for reconsideration raises a new issue, it would be prudent to appeal twice — once after the original judgment, and again from the denial of the motion for reconsideration.

– David Ziemer

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David Ziemer can be reached by email.

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