Please ensure Javascript is enabled for purposes of website accessibility
Home / Legal News / ‘Trial’ occurs despite directed verdict

‘Trial’ occurs despite directed verdict


Hon. Shirley S. Abrahamson

The Wisconsin Supreme Court held on Nov. 4 that, where a municipality presents its case in a municipal trial, and the defendant is granted a directed verdict, a "trial" has occurred, and the municipality can receive a new one in circuit court.

In so holding, the court reversed a published decision of the court of appeals, City of Pewaukee v. Carter, 2003 WI App. 260, 268 Wis.2d 507, 673 N.W.2d 380.

In 2001, after his involvement in an automobile accident, Thomas L. Carter was cited by the City of Pewaukee for operating a motor vehicle while intoxicated and with a prohibited alcohol concentration. After several delays, the trial was set for June 20, 2002, in municipal court.

After presenting three witnesses, and documentary evidence, the City informed the municipal court that it would not move to admit the blood test because the arresting officer was unavailable to testify. Instead of requesting a continuance or adjournment, the City rested its case, relying on the evidence already presented.

Without presenting any evidence, Carter moved to dismiss the action on the ground that the City had failed to meet its burden of proof. The municipal court granted the defendant’s motion, and dismissed the action with prejudice.

Instead of seeking review of the record in circuit court, pursuant to sec 800.14(5), the City requested a new trial, pursuant to subsection (4).

Waukesha County Circuit Court Judge Mark Gempeler dismissed the request, holding that the municipal trial was not "fully litigated," and thus, the City had no right to request a "new trial."

The court of appeals affirmed, over a dissent by Judge Richard Brown, and the Supreme Court granted review. The court reversed in a unanimous decision by Chief Justice Shirley S. Abrahamson.

Section 800.14(4) provides, in relevant part: "Upon the request of either party within 20 days after notice of appeal under sub. (1), or on its own motion, the circuit court shall order that a new trial be held in circuit court. The new trial shall be conducted by the court without a jury unless the appellant requests a jury trial in the notice of appeal under sub. (1)."

The court began by considering the definition of the word, "trial," noting that it has different meanings in different contexts.

Some courts have adopted bright-line rules for determining when a trial has commenced — for double jeopardy purposes, for instance, the trial commences once the jury is empanelled, or the first witness called.

What the court held

Case: City of Pewaukee v. Thomas L. Carter, No. 03-1114.

Issue: Where a municipality presents its case in a municipal trial, but the defendant is granted a directed verdict, has a "trial" occurred, within the meaning of sec. 800.14(4), allowing the municipality to receive a new one in circuit court?

Holding: Yes. Where testimony is given, a trial has occurred, and a new one may be held, regardless of whether the defendant prevails on directed verdict at the close of the city’s case, or proceeds to present evidence of his own.

Counsel: H. Stanley Riffle, Rick D. Trindl, Julie A. Aquavia, Waukesha, for appellant; Rex R. Anderegg, Milwaukee, for respondent.

In other contexts, however, courts have set forth different tests to determine whether a trial has taken place. The Ohio Supreme Court, for example, has enumerated nine non-exhaustive indicia: "(1) whether the proceeding was initiated by the pleadings, (2) whether it took place in court, (3) whether it was held in the presence of a judge or magistrate, (4) whether the parties or their counsel were present, (5) whether evidence was introduced, (6) whether arguments were presented in court by counsel, (7) whether issues of fact were decided by the judge or magistrate, (8) whether the issues decided were central or ancillary to the primary dispute between the parties, (9) whether a judgment was rendered on the evidence." First Bank of Marietta v. Mascrete, Inc., 684 N.E.2d 38, 41 (1997).

However, the court of appeals did not consider the definition of "trial," as it concluded its result was dictated by its earlier decision in Menomonee Falls v. Meyer, 229 Wis.2d 811, 601 N.W.2d 666 (Ct.App.1999). So before defining "trial" in this context, the court considered whether Meyer was correctly decided, and if so, whether it was determinative.

In Meyer, the defendant was also facing a municipal drunk driving charge, but the case was dismissed without trial, because the village was unable to proceed, after the court precluded introduction of a police report. The court of appeals held that the city could not then obtain a "new trial" in circuit court, because there had never been a first trial.

Distinguishing Meyer from the case at bar, the court of appeals noted, "Unlike in the present case, the motion to dismiss in Meyer was made prior to opening statements, prior to the introduction of any evidence, and prior to the swearing of any witnesses. Indeed, the court of appeals in Meyer employed the word ‘trial’ four times only in sentences using the future tense. Apparently in Meyer the court of appeals was attempting to distinguish pretrial motion practice from the prerequisite trial under Wis. Stat. sec. 800.14(4)."

In the instant case, however, three
witnesses testified and were cross-examined.

The court thus found Meyer not controlling, reasoning, "the proceeding in the municipal court had several events ordinarily occurring in a trial, and indeed the case was fully litigated as far as the parties were concerned. The party with the burden of proof presented its evidence in full, and the defendant engaged in cross-examination. The defendant chose not to present his evidence. The municipal court then judicially decided the case upon the defendant’s motion by resolving a question of law on the basis of the testimony and documentary evidence presented."

Accordingly, the court held that, although Meyer was correctly decided, the case is distinguishable, and the reliance on it in the case at bar was erroneous.

The court concluded, "To allow a defendant to move to dismiss at the close of the City’s evidence, and yet to refuse to classify the municipal court proceeding as a trial, leads to a peculiar distinction between a motion to dismiss made before a defendant puts in his evidence and a motion to dismiss made after a defendant presents his evidence. Judge Brown explained this problem in his dissent in the court of appeals as follows: ‘[A] motion made at the close of the plaintiff’s case does not allow for a trial de novo in the circuit court but a motion made at the close of all the evidence, based on the same legal grounds . . . does allow for a trial de novo.’ We agree with Judge Brown on this point."

Related Links

Wisconsin Court System

Related Article

Case Analysis

The court added, "Section 800.14(4) also gives the circuit court the right to grant a new trial on its own motion. It is hard to believe that the legislature would allow a defendant to extinguish both an opposing party’s ability to obtain a new trial and a circuit court’s power to order a new trial merely by tendering his or her motion to dismiss at the end of a plaintiff’s case instead of later in the proceeding."

The court then held that, although Meyer was correctly decided, certain language in the decision must be withdrawn, finding, "It is apparent that the court of appeals’ use of the words ‘fully litigated’ and ‘full trial’ has led and may lead to confusion. Accordingly we withdraw the language in Meyer requiring that a case be ‘fully litigated,’ or that there be a ‘full trial’ in municipal court in order for a municipal proceeding to constitute a trial."

After a lengthy review of the legislative history, the court held that permitting a new trial after a directed verdict did not contravene legislative intent, finding, "Nothing in sec. 800.14(4) or the legislative history supports the court of appeals’ conclusion that it is an absurd result if municipalities are permitted ‘to correct errors fatal to their municipal court case by requesting a new trial before the circuit court.’"

Accordingly, the court reversed, and remanded the case to circuit court for a new trial.

Click here for Case Analysis.

David Ziemer can be reached by email.

Leave a Reply

Your email address will not be published. Required fields are marked *