Schmidt v. Smith

SUNDBY, J.

(concurring). I concur in the result and in the opinion. I write separately, however, to address Smith's troublesome claim that we wrongly decided Ahrens-Cadillac Oldsmobile, Inc. v. Belongia, 151 Wis. 2d 763, 445 N.W.2d 744 (Ct. App. 1989). Smith claims that the history of secs. 801.15(2)(c) and 805.16, Stats., shows that the trial court may act under sec. *376801.15(2)(c) to enlarge the time for filing motions after verdict even though it does not act within twenty days after the verdict is rendered. The history of these sections does not, however, support Smith's claim.

These sections were revised by order of the Wisconsin Supreme Court, effective July 1, 1987. See 136 Wis. 2d xxvii. Prior to its amendment, sec. 805.16(1), Stats., provided: "Motions after verdict shall be filed and served within 20 days after the verdict is rendered." The supreme court amended this provision so that it now reads: "Motions after verdict shall be filed and served within 20 days after the verdict is rendered, unless the court, within 20 days after the verdict is rendered, sets a longer time by an order specifying the dates for filing motions, briefs or other documents."

The Judicial Council note to sec. 805.16, Stats., states: "Sub. (1) specifies that the trial court may allow more than 20 days for motions after verdict to be filed, if a schedule for the filing of motions and supporting materials is ordered within that time." Judicial Council Note, 1986, sec. 805.16, Stats, (emphasis added).

Prior to its amendment by the supreme court, sec. 801.15(2)(c), Stats., read: "The time for appeal under s. 808.04, for motions after verdict under s. 805.16, and for motions for relief from judgment or order under s. 806.07 may not be enlarged." As amended, the statute now reads: "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 relief from judgment or order under s. 48.46(2) or 806.07 may not be enlarged." (Emphasis added.)

The Judicial Council note to this section states: "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 *377enlarged by the court under revised s. 805.16(1) and (2)." Judicial Council Note, 1986, sec. 801.15, Stats, (emphasis added).

Thus, the Council sought 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 trial court. However, the trial court's authority to enlarge the time for filing and hearing motions after verdict is limited as provided in sec. 805.16(1), Stats., which requires the court to act within twenty days after the verdict is rendered.

Because the trial court did not establish a schedule for the filing of motions after verdict within twenty days after the verdict was rendered, the trial court lost competency to consider Smith's motion, which was filed twenty-seven days after the verdict.