Reconsideration motion does not extend appeal

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“A party in a small claims action may simultaneously move for reconsideration and initiate an appeal. Allowing a tenant to move for reconsideration under sec. 805.17(3) thus does not contravene the legislative intent to provide a ‘speeded-up’ forum for eviction proceedings.” Chief Justice Shirley S. Abrahamson Wisconsin Supreme Court

A tenant in an eviction action may move for reconsideration of her eviction, but the motion does not extend the time for filing an appeal, the Wisconsin Supreme Court held on Dec. 30.

Michele Bast rented a residential unit from Highland Manor Associates. On Sept. 13, 2002, a judgment of eviction was entered against her. On Sept. 20, Bast moved for reconsideration pursuant to sec. 805.17(3).

On Oct. 4, Dane County Circuit Court Judge Michael N. Nowakowski denied the motion. On Oct. 21, Bast filed a notice of appeal from the denial of her motion for reconsideration.

The Wisconsin Court of Appeals held in a published decision, Highland Manor Associates v. Bast, 2003 WI App 130, 265 Wis.2d 455, 665 N.W.2d 338, that sec. 805.17(3), which governs motions for reconsideration, does not apply to eviction actions, and dismissed the appeal.

The Wisconsin Supreme Court unanimously affirmed the ultimate holding that the appeal must be dismissed as untimely, in a decision by Chief Justice Shirley S. Abrahamson. However, the court held that motions for reconsideration can be filed in evictions.

The Statutes

Section 799.01(1)(a) provides, “Except as provided in ss. 799.02(1) and 799.21(4) and except as provided under sub. (2), the procedure in this chapter is the exclusive procedure to be used in circuit court in the following actions: (a) Eviction actions. Actions for eviction defined in s. 799.40 regardless of the amount of rent claimed therein.”

However, Chapter 799 does not provide a full set of civil procedure rules for eviction actions, and it neither includes a mechanism for motions for reconsideration, nor prohibits them.

Section 799.04 provides, “except as otherwise provided in this chapter, the general rules of practice and procedure in chs. 750 to 758 and 801 to 847 shall apply to actions and proceedings under this chapter.”

Section 805.17(3) governs motions for reconsideration after a trial to the court, generally, providing, in relevant part: “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.”

Competing Considerations

The court reviewed the various considerations weighing in favor of, and against, allowing motions for reconsideration in eviction actions, and held that they are allowed.

Weighing against such motions is that the legislature intended eviction proceedings to be as summary as possible because there is seldom an issue for trial.

However, public policy favors allowing a circuit court to reconsider its decisions. The court noted that reconsideration may obviate the need for an appeal, sparing the parties unnecessary expense
and serving the goal of judicial economy. The court also found, “even if an appeal is not avoided, a motion for reconsideration enables a circuit court to hone its analysis and thus expedite the appellate review process.”

Furthermore, the court found that a motion for reconsideration can be made while an appeal is pending, thus not delaying the appeal or the eviction proceedings.

The court concluded, “a party in a small claims action may simultaneously move for reconsideration and initiate an appeal. Allowing a tenant to move for reconsideration under sec. 805.17(3) thus does not contravene the legislative intent to provide a ‘speeded-up’ forum for eviction proceedings.”

Time Extension

However, the court held that the filing of a motion for reconsideration does not extend the time to appeal from a judgment of eviction.

Section 799.445 provides, in relevant part, “An appeal in an eviction action shall be initiated within 15 days of the entry of judgment or order as specified in s. 808.04(2). … No appeal by a defendant of an order for judgment for restitution of the premises may stay proceedings on the judgment unless the appellant serves and files with the notice of appeal an undertaking to the plaintiff, in an amount and with surety approved by the judge who ordered the entry of judgment.”

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Section 805.17(3) provides, “If the court denies a motion [for reconsideration], 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 …, the motion is considered denied and the time for initiating an appeal from the judgment commences 90 days after entry of judgment.

The court found the two statutes conflicting, because application of sec. 805.17(3) could extend the time to file an appeal to as many as 110 days after judgment, although an appeal from an eviction must be filed within 15 days.

To resolve the conflict, the court turned to sec. 799.04, which provides that the general rules of civil procedure apply unless a provision of Chapter 799 applies.

Because sec. 799.445 specifically provides the allowable time to appeal an eviction, the court concluded it trumps the general time for appeal in sec. 805.17(3).

Accordingly, the court held that, although a tenant can move for reconsideration under the first part of sec. 805.17(3), the latter part of the statute — governing the time for appeal — is inapplicable, and the tenant must file within 15 days from the original judgment, as provided in sec. 799.445.

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David Ziemer can be reached by email.